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You’re (Probably) Doing It Wrong: New Fair Use Guide for Artists

If you're an artist of any stripe you've probably had moments of uncertainty about using copyrighted materials in your work -- and when it falls under fair use.

If you’re an artist of any stripe, you’ve probably had moments of uncertainty about using copyrighted materials in your work, and the instances in which your use falls under fair use. A new study by the College Art Association (CAA) discovered that 37 percent of artists use third-party material and that one in five avoids or abandons a project over concerns that they’re not doing it right — and that number is much higher for editors and academics.


To remedy these fears, the CAA sponsored the work of American University professors Peter Jaszi and Patricia Aufderheide in the creation of “The Code of Best Practices in Fair Use for the Visual Arts,” the 10th such code that the pair have created that aims to help creators work more effectively and with less risk.

The multi-year effort by Jaszi and Aufderheide involved meeting with thousands of artists, who were surveyed and interviewed about their reasons for using third-party materials and the legal limitations of those rationales. The AU professors then drafted a code on the areas of consensus among the groups and split it into five sections: analytic writing, teaching about art, art making, museum work, and online archives and special collections.

CAA defines fair use as the “broad, flexible doctrine that will allow visual arts professionals to meet mission in the digital age.”

Sticking to the “art making” category, which applicable to music, writing and other mediums, the code maintains that “artists may invoke fair use to incorporate copyrighted material into new artworks in any medium,” subject to the following limitations:

  • Artists should avoid uses of existing copyrighted material that do not generate new artistic meaning, being aware that a change of medium, without more, may not meet this standard. 
  • The use of a pre-existing work, whether in part or in whole, should be justified by the artistic objective, and artists who deliberately repurpose copyrighted works should be prepared to explain their rationales both for doing so and for the extent of their uses. 
  • Artists should avoid suggesting that incorporated elements are original to them, unless that suggestion is integral to the meaning of the new work. 
  • When copying another’s work, an artist should cite the source, whether in the new work or elsewhere (by means such as labeling or embedding), unless there is an articulable aesthetic basis for not doing so.

“Codes of best practices have proven enormously successful in enabling members of other creative communities to do their work well and effectively. They allow individuals to make judgments knowing where they fall in relation to the thinking of their peers — and that lowers risk. Further, codes give museums, broadcasters, insurers, publishers, educational institutions, and their lawyers a new and valuable tool to use in making better, more reasonable assessments of risk,” says Aufderheide.

Professors Jaszi and Aufderheide will discuss the new code during a free session at the CAA’s Annual Conference in New York City on Friday, Feb. 13. Get a copy of the new guide here