Fair Use

The Robert Rauschenberg Foundation recently announced a new Fair Use policy to make images of the artist’s work more accessible to museums, scholars, artists and the public (Artnotes AM395). This enlightened and innovative approach represents the first artist’s estate/foundation to adopt such an initiative and is in keeping with Rauschenberg’s artistic spirit and intent: ‘always looking to identify challenges and provide solutions’, according to the Foundation, the mission of which is to ‘foster the legacy of the life, artistic practice, and activist philosophy of one of the most important artists of the 20th century’.

Since Rauschenberg’s death in 2008, the Foundation’s work has led to its identification of problems with copyright law: ‘Traditional notions of copyright and attempts to control images have proven incompatible with the nature of the digital age. Given all the challenges that have emerged – converting print to digital, promoting scholarly use, and incentivising museums to use Rauschenberg images – we realised that the greatest impact would come through transferring control to scholars and museums. While in the short-term we’ll certainly see a minor loss of income, we believe the significant increase in scholarship, accessibility, and accuracy more than outweigh the “costs” to the Foundation.’

In recent years throughout the artistic world fair use has become the elephant in the room, which the Robert Rauschenberg Foundation’s new policy addresses head on. The Foundation introduced grants of ‘pilot licences’ in 2015 to a select group of museums, including the Art Institute of Chicago, MoMA New York, Philadelphia Museum of Art, San Francisco Museum of Modern Art, Minneapolis Institute of Art, Cleveland Museum of Art, and Tate Modern. Following the success of these pilots, the Foundation moved on to encourage the use and reproduction of Rauschenberg artwork under the legal doctrine of ‘fair use’, thereby ‘eliminating royalty fees, permissions, and license agreements’.

Fair use did not feature in the world’s first copyright law, when this was enacted in England in 1709: its sole aim was to promote and support authorship and publishing by giving authors exclusive legal rights to print and disseminate their original works (and therefore to prevent others from generating income from printing and selling unauthorised copies). Over the following three centuries similar copyright laws were enacted by most countries worldwide, authors’ rights were substantially expanded and extended, and international treaties were signed to facilitate worldwide copyright enforcement. Throughout this time legislators gradually introduced ‘fair use’ provisions in an effort to balance the interests of copyright owners with the public interest.

Most countries have now enacted certain ‘permitted acts’ that may be done to copyright-protected works without permission of the copyright owner.  Countries wishing to introduce permitted act laws (into their own copyright legislation) assess whether their draft provisions comply with internationally agreed criteria, through a three-step test. This requires that permitted act laws should be enacted (a) only for certain specified activities; (b) only if such activities do not conflict with the normal economic exploitation of the copyright work; and (c) only if such activities do not unreasonably prejudice the legitimate interests of the author. In this way, most countries have enacted ‘fair use’ or ‘fair dealing’ laws that permit certain specified activities.

Examples of permitted activities include: personal research and study; criticism or review; quotations; caricature/parody/pastiche; media reporting current events; education; libraries; transformation. These permissive legislative provisions provide a legal framework for use by courts to decide whether the facts of each case amount to activity that counts as ‘fair use’. In each case, court decisions about permitted acts are based on a mixture of law and fact. Accordingly, it is difficult to know with any degree of certainty whether someone proposing to use a copyright-protected work would be permitted by to do so. Lawyers usually offer their professional opinion, together with a health warning that only courts can be decisive.

Some countries have tried to help would-be users and their lawyers – as well as their courts – to be more certain about what amounts to fair use by enacting further legislative provisions specifying factors or criteria that courts are required to use when deciding a case. In the US there are four such factors: the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyright work. Similar factors exist in fair use legislation of many other countries, and also reflect the approach of courts in many countries (like the UK) where such factors are not part of fair use legislation. Despite these legislative and judicial approaches, fair use still remains a largely uncertain matter throughout most of the world. This is why the Foundation has promulgated a new policy to bring public clarity and more certainty for would-be users of Rauschenberg’s copyright-protected works.

In particular, the Foundation’s policy states that ‘the public can freely use images of Rauschenberg’s work for non-commercial, scholarly, and/or transformative purposes, such as: creative writings; print and digital newspapers and magazines; online teaching tools and study guides; social media; and transformative use in artworks.’ Users publishing images of Rauschenberg’s artworks under fair use also do not require permission from the Foundation, but to ensure accuracy in colour reproductions and citations publishers are requested to contact the Foundation to obtain free authorised reproductions and citations (although users must not suggest the Foundation is sponsoring or is formally affiliated with the publisher). The Foundation’s policy further clarifies its own fair use of copyright-protected works of other artists, and invites questions or comments on such use from copyright owners. Lastly, the Foundation has made special arrangements for educational institutions and museums that are ‘uncomfortable publishing under the doctrine of fair use or for select image use that does not qualify for fair use’: such would-be users may apply to the Foundation for a special licence agreement granting specific use on a case-by-case basis.

It is significant that the Foundation’s enlightened new policy is built upon best practices published in 2015 by the US-based College Art Association (CAA). Established in 1911 as an advocacy group to address standardisation of academic courses in studio practice and art history, CAA is now ‘the pre-eminent international leadership organisation in the visual arts, promotes these arts and their understanding through advocacy, intellectual engagement, and a commitment to the diversity of practices and practitioners’. CAA’s Code of Best Practices in Fair Use for the Visual Arts, published on its website, includes key sections dealing with: Fair Use – Why We Need It; Fair Use in Writing About Art; Fair Use in Teaching About Art; Fair Use in Art Making; Fair Use in Museum Use; and Fair Use in Memory Institutions Uses.

CAA’s code has been endorsed not only by the Robert Rauschenberg Foundation, but also by further prestigious bodies, including the American Library Association, the Association of Art Museum Directors and the American Alliance of Museums. Although US-oriented, the code constructively addresses fair use issues commonly experienced in the visual arts worldwide, including in the UK, and makes a valuable contribution to forward movement in a notoriously labyrinthine area.

© Henry Lydiate 2016

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.