Today, I participated in a meeting convened by the College Art Association (CAA) as part of the project led by Patricia Aufderheide and Peter Jaszi to develop a code of best practices in fair use for the visual arts. CAA is convening ten of these sessions as one input into the development of this code. You may have seen the paper that this project produced earlier this year, on Copyright, Permissions, and Fair Use among Visual Artists and the Academic and Museum Visual Arts Communities, which formed the basis for the discussion. Our group of  approximately a dozen participants, including academic art historians, visual artists, and museum professionals, discussed a number of scenarios about the re-use of art works in the context of scholarship and other types of serious discourse.

The scenarios included the reproduction of an image in the context of a scholarly publication; the creation by a museum of a virtual exhibition; the release by a museum of digital imaging of the objects in its collections; and the incorporation by an artist of commercial media into her or his work. During the course of these discussions, several interesting issues emerged:

  • The reproduction of certain kinds of works of art in the context of a scholarly publication may be sufficiently transformative in order to constitute fair use.
  • Our thinking about the use of reproductions of artworks may vary in part with whether the underlying artwork is two-dimensional or three-dimensional or time-based.
  • Time-based and digital media offers special challenges, because a reproduction can be actually a perfect duplicate of the original work.
  • Privacy considerations can be as important for digital artists as copyright issues, in some cases even more so.
  • There is an established ecology for “sampling” from the works of others, in which many artists systematically credit and in many cases pays artistic sources who are less culturally significant than them.

This important project for the field of art history and the visual arts is one in a series that the Aufdefheide-Jaszi team have led.