Monday, February 16, 2015

Ten Principles of Fair Use

The College Art Association has just released a guidebook about the special circumstances when it's OK to use someone else's copyrighted artwork.

Called the "Code of Best Practices in Fair Use for the Visual Arts," the short, free, PDF is the result of years of work from the Association's legal experts.

Here's a quick summary of 10 main principles that are covered in the document.

1. You don't need to worry about Fair Use if permission is already granted, such as work designated by a Creative Commons license, or work in the public domain, such as images published before 1923.

2. If you're writing a review or an analysis of a given work, you can show the work or quote necessary parts from it, as long as you give appropriate credit. Generally speaking, this kind of use is permissible if it involves "criticism, comment, teaching, or scholarship."

3. If you're a teacher, you can display a copyrighted work as part of a specific curriculum for a specific group of students.

4. If you make art, you can adapt or reference copyrighted material if you use only what you need, and alter it into a new medium, generating new artistic meaning.

5. It's generally OK to use copyrighted work if the use is transformative, meaning that it "adds something new, with a further purpose or different character."

6. Museums can show copyrighted works as part of their curatorial mission, as long as it's credited, and not downloadable in high resolution form.

7. Academic libraries and art schools can preserve digital copies for purposes of study, again as long as they're properly credited, and not released in high resolution form.

8. If you deliberately repurpose the work of others, you should be prepared to explain the artistic objective, and you should not claim to be the creator of those derivative elements.

9. Judges consider whether the derivative work is commercial or educational in nature, and whether the derivative work undermines the market for the copyrighted work.

10. None of these are absolute rules. Like principles of freedom of expression, there are plenty of gray areas, and judges may rule one way or another, depending on many factors. My personal disclaimer: I'm not a lawyer; these ten basic principles I've summarized here are necessarily oversimplified; they're not the last word on my personal opinion; and I recommend you read the whole document.

In an appendix to the publication, Peter Jaszi puts the principles of the Copyright Code in context by explaining how the rights of the creator are balanced against the needs of the culture at large:

"The goal of US copyright law is to promote the progress of knowledge and culture. Its best-known feature is protection of owners’ rights. But copying, quoting, recontextualizing, and reusing existing cultural material can be critically important to creating and spreading knowledge and culture. That is why there is a social bargain at the heart of copyright law. That bargain is: Our society offers creators some exclusive rights in copyrighted works, to encourage them to produce culture. The compensation that creators receive from exploiting their copyrights is important as an incentive to this ultimate end; it is not an end in itself."
Free PDF: Code of Best Practices in Fair Use for the Visual Arts
Wikipedia on Fair Use
Thanks, Animation World Network


Daroo said...

So I saw your giant rodent painting reproduced in a magazine called "the week" . Which reproduced it from some other source -- (The scientists' press release? --GJ feb 4th). It was not attributed to you -- in fact there are no photo or illo credits -- The mag lists a website which credits the original publication of the articles.

The magazine charges for subscriptions. This seems to stretch fair use for me.

Steve said...

I also saw the giant rodent painting in the Feb. 20 issue of "The Week" (p.21) and wondered about the pathway of reproduction rights.

Karen Eade said...

I saw your giant rodent painting in a newspaper here in the UK. I thought "that looks like something James Gurney would paint" but you were not credited, so I assumed the illustrator had read one of your books. Silly me. On one level, i read your synopsis with relief as I think there is an awful lot of smoke and mirrors and guff talked about copyright as if you own the patent to the elixir of life or something, but it is a shame to use your work and not credit you for it.

James Gurney said...

Steve and Daroo, In this case the scientist asked if he could use my painting for the press announcement. He said it was the best image to illustrate his paper. I had done the artwork as a commissioned piece some years ago, and had retained second rights.

I could have charged the scientist for the usage. But in this case, because it was educational, I granted the rights freely. The various newspapers and magazines would not have paid him or me for such a news usage. Had it been a greeting card or a book illustration, or another such commerical use, I probably would have charged a moderate second rights fee.

I did ask for a credit, and, if possible, a link. So if a magazine didn't credit me for it, it was the magazine's oversight, and they really should have.

The scientist said that he felt the media pickup would not have been as broad without that artwork, which was a nice compliment.

June said...

Would this guide be aimed at use of USA created images or world wide?
In the UK the term 'Fair Use' has only very recently been added to copyright legislation.

James Gurney said...

June, the Guide states: "The Code applies to any copyrighted work used in the United States regardless of whether the work originated outside the United States." I'm sure laws vary in different countries.

TimP said...

I kind of feel that points 4 and 5 give a wrong impression and seems to encourage using other peoples work in your work. Not that you personally are, James.

This is where people get hurt the most, if it goes to a legal issue. If you use someone's work, even partially, you can still be sued. Claiming fair use or transformative won't stop a lawsuit.

As my friend, a copyright lawyer says: By the time you're in front of a judge, you're $50K - $100K deep in legal fees, with no possibility of contingency

How many artists can afford that?

Honestly, I think it's best to skip over parts 4 and 5, and just focus on making original art, rather than trying to reference or transform art. There's more than enough room in the art world for new.

Unknown said...

This website is listing one of your pieces as public domain:
Specifically this image:

I almost used some of what's on their site that I couldn't , but that piece is clearly yours and I don't see any indication that it should be public domain in your site/information.

I'd be very happy if you confirmed that it *is* public domain, but I'm guessing it's not so it might be something that you (and any other artists whose pieces you may recognise amongst their listings - you are rather studied in the subject) might need to be aware of.

James Gurney said...

Hi, Stephen,

Thanks for letting me know. I notified the website's owner, Ken Swindon that the Waterfall City image is copyrighted and not approved for free downloads. If people want to put a small file on their social media with link and credit, that's OK, as long as it's not a commercial use.

I saw some Michael Whelans and Darrell Sweets in that portfolio that are doubtfully in the public domain.