Fair Use in the Visual Trenches

I've recently been preparing to teach a class on intellectual property to visual artists in Seattle. As I gathered information and images for a slide show, I wondered how to explain to working artists (in the course of a few hours no less) why this is fair use:

And this is not.

Yes, we can talk about the four main factors in a fair use analysis and, of course, transformativeness and parody, but practically speaking how is a working artist to put this to use? If lawyers and judges can't agree, or even explain the concept without discussing how vague and opaque the fair use doctrine is, what is an artist to do?

During my research I located a January 2014 Fair Use Report prepared for the College Art Association. The report addresses concerns that fair use is underutilized by the visual arts community due to confusion and fear about copyright infringement.

Some of the key findings and figures are summarized in the report as follows:

"Visual artists and other visual arts professionals, a term used in this report to include (among others) art historians, educators, professors, editors or publishers, museum professionals, and gallerists, share a common problem in creating and circulating their work: confusion and misunderstanding of the nature of copyright law and the availability of fair use—the limited right to reuse copyrighted material without permission or payment.

Fair use is flexible, available, and even core to the missions of many visual arts activities. 

Members of the visual arts communities typically overestimate the risk of employing fair use, which leads them to avoid it, even in circumstances where the law permits and so doing would not harm personal relationships necessary for their work.

They pay a high price for copyright confusion and misunderstanding. Their work is constrained and censored, most powerfully by themselves, because of that confusion and the resulting fear and anxiety.”

The report further found that approximately one third of those in the field had abandoned or declined to undertake certain projects due to copyright issues, this includes museums failing to digitize collections, curators declining to do shows where copyright permissions may be an issue, and artists who avoid collage and other types of appropriation art.

While I agree that fair use is flexible and available, it is perhaps the doctrine's over-flexibility that has led to many of these problems. Couple this with copyrights of expansive duration, lack of guidance with respect to orphan works, and at times avid copyright enforcement, and it is no wonder that some artists are avoiding the fair use morass all together. The outcome of these matters is so often unpredictable, and the courts' lack of consistency in application has left us with a hyper-flexible fair use doctrine and vague best practices.

Of course, this is not to say artists should be voluntarily ignorant and fearful of copyright law. Education about copyright serves as an extremely valuable tool in preventing unnecessary self-censorship and allows artists to understand and assess on their own terms the risks associated with particular uses of copyright-protected materials. Indeed artists should have an understanding that they themselves are the beneficiaries (not just the victims) of copyright protection and all the rights and opportunities associated therewith.