Visual arts organizations criticize shortcomings of fair use best practices

“[S]cholars and the public need to have the freedom to create new works and, that frequently, these derivative and new works are based on existing images through the application of the fair use doctrine,” said a group of visual artist organizations in a letter published this week. At the same time, they note, “it should also be recognized that professional visual artists create part of their income stream through licensing of their creative labors and that there must be proper balance between the needs of these various communities.”

The letter, signed by representatives of PACA, Digital Media Licensing Association and Copyright Alliance members National Press Photographers Association, American Photographic Artists, American Society of Media Photographers, Graphic Artists Guild, and Professional Photographers of America, and available here, criticizes a recently released “Code of Best Practices in Fair Use for the Visual Arts.”

In February, the College Arts Association (CAA), under the project leadership of Patricia Aufderheide and Peter Jaszi, released the Code with the stated purpose of providing “a practical and reliable way of applying” copyright doctrine to common situations involving the use of works of visual arts.

However, the visual arts organizations state that the Code frames the issues in an unnecessarily adversarial manner. In the letter, they write,

One of the unfortunate conclusions of the Code in its current form is that copyright acts primarily as a barrier, encouraging self-censorship; and that artists are in an adversarial relationship with the marketplace. Nothing could be further from the truth. Visual artists want their works used and only seek fair and reasonable compensation for that use. The Code fails to educate the academic arts community on when licensing is appropriate.

The letter goes on to list several specific shortcomings of the Best Practices. It concludes that the Code “creates far more misconceptions than it resolves and encourages misappropriation of copyrighted work rather than the practice of due diligence and licensing. It is not helpful to the courts because it presents biased findings and in fact helps lead the professional community astray with regard to the best way to proceed when seeking to use the works of others.”

Perhaps most importantly, the Code lacks a full perspective. The letter points out that while the Code claims to be based on a consensus, its preparation lacked “participation from all the stakeholders in the visual arts community,” specifically the thousands of professional creators represented by the signers.

To its credit, as the letter notes, the CAA has expressed willingness in hearing the specific concerns from the visual arts community. Hopefully this letter sparks further dialogue.