CAA Code of Best Practices in Fair Use for the Visual Arts

Much uncertainty surrounds how and when images or other copyrighted material can be used, especially for teaching and scholarship. For a use of copyrighted material to be considered fair in the United States, four factors should be considered (simplified below from those set out in Section 107 of U.S. copyright law) :

1. Purpose of the use
2. Kind of work used
3. Amount used
4. Effect on the market

While many educators, librarians, image curators, and other archives and museum professionals have become adept at reciting these four factors, their interpretation and lawful application is often quite complex and subject to emerging case law. Recent court decisions, including that in the Authors Guild v. HathiTrust (2014), are moving in the direction of qualifying, if not encouraging, how fair use can be applied when creating or sharing digital content.



The College Art Association (CAA) has recently released a Code of Best Practices in Fair Use for the Visual Arts. Made public just prior to the annual CAA conference last month (February, 2015), this new code of best practices seeks to provide a “clear framework in which to apply fair use with confidence, knowing the shared norms of [the] field.” It is preceded by CAA’s publication in 2014 of “Copyright, Permissions, and Fair Use among Visual Artists and the Academic and Museum Visual Arts Communities: An Issues Report,” a key finding of which was that “the practices of many professionals in the visual arts are constrained due to the pervasive perception that permissions to use third-party materials are required even where a confident exercise of fair use would be appropriate.” As it turns out, many of us who make and share creative work have been engaging in self-censorship because we’ve simply not found adequate clarity on how to apply fair use.

The new code is the result of the “consensus of professionals in the visual arts who use copyrighted images, texts, and other materials in their creative and scholarly work.” This team consulted legal experts and codes of practice developed by other communities to guide the application of fair use and gathered feedback from the CAA community through 12,000 surveys and discussions with 120 visual arts professionals, findings from which were published in the 2014 report.

Encouragingly, in addition providing vetted community consensus on fair use principles as they apply to work with visual arts, the CAA code also briefly addresses the use of public domain material. Even though this is not a primary focus of the code, the authors call upon “the reasoning of the decision in Bridgeman Art Library v. Corel Corp.,” to assert that “copyright-free material also includes faithful photographic reproductions of two-dimensional artworks, which are distinct from the artworks they depict.” And, while they acknowledge that Bridgeman does not “on its face apply to still photographs of three-dimensional works,” the authors note that these photographs “might be used pursuant to fair use in light of the principles and limitations set forth in the code.”

To learn more, the College Art Association is offering a series of five webinars on fair use in the visual arts starting March 27 and running through June 5.