Fair Use in the Visual Arts

Shepard Fairey's "Hope" poster of Barack Obama
Shepard Fairey, Barack Obama “Hope” poster, 2008

Why Copyright? Why Visual Art?

Copyright exists to allow creative ideas to flourish. It promotes making and the dissemination of ideas by providing creators with protections against the misuse of their work. However, many people abandon projects due to copyright concerns. That is why the doctrine of fair use is so important, especially in the visual arts. Fair use allows the use of copyrighted materials without the permission of the copyright holder, and therefore gives more freedom for artists to express their ideas.

Art responds to ideas about our culture and society. For this reason, many works of art are inspired by the work of other artists. There is even a field of art dedicated to using pre-existing objects or images referred to as appropriation art. Appropriation art has been extensively used since the 1980s and raises questions about originality, authenticity, and authorship (Tate, “Appropriation.” Date accessed February 13, 2020. https://www.tate.org.uk/art/art-terms/a/appropriation). Fair use can be understood through the context of appropriation art. Whether art is considered fair use or not is determined by four factors.

Four Factors of Fair Use

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.
2. The nature of the copyrighted work. For example, a court will consider whether the work being copied is informational or entertaining in nature. Fair use is more likely to be determined if the material is copied from factual work.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
4. The effect of the use upon the potential market for, or value of, the copyrighted work.

There is no clear formula of how the four factors should be considered in determining fair use. Grey area deliberately exists to assess each scenario on a case-by-case basis. See how this plays out in the two examples below.

Examples

David Smith, Cubi XXVII
David Smith, Cubi XXVII, stainless steel, 1965. 111-⅜ x 87-¾ x 34 in.
Lauren Clay, Cloud on my single-mindedness
Lauren Clay, Cloud on My Single-Mindedness (Cubi XXVII), acrylic and paper, 2012. 30 x 24 x 12 in.

 

 

 

 

 

 

 

 

 

 

In 2012, artist Lauren Clay created a small piece, Cloud on My Single-Mindedness, using soft materials. This piece was a response to original work by artist David Smith that was 8’ by 10’ and made from stainless steel. Clay’s work is an interesting commentary on the abstract expressionist art of Smith. Although the two pieces are visually similar it was ultimately settled outside of court that Clay’s piece met the standards of fair use because the small size, soft materials, and colored surfaces were a feminist response to Smith’s large-scale, stainless steel piece.

 

Left: Patrick Cariou, Yes Rasta, 2000; Right: Richard Prince, Canal Zone, 2008.

In 2000, photographer Patrick Cariou published a book on Rastafarian culture in Jamaica. Appropriation artist Richard Prince used photos from the book without attributing work to the original artist. Prince’s work garnered over ten million dollars in profit. This case raises questions about the extent to which Prince transformed, or did not transform the piece, what his ultimate objectives were, and whether his work diminished the market value for Cariou’s work. Ultimately, an appeals court decided that Prince’s work was transformative enough to a reasonable observer.

The last example, especially, illustrates the difficulty of assessing fair use. When writing about, teaching about, or making art remember that fair use is generally favored under these conditions: 1. using material for educational purposes or personal study; 2. transforming the original work in a way that it adds meaning; 3. using only small portion of the original work; 4. being able to articulate the use of copyrighted material by the objective of the new piece; and 5. citing the source of the original work.

[Content for this post was inspired by Fair Use in the Visual Arts: Lesson Plans for Librarians, an open-access e-book produced by the Art Libraries Society of North America. To learn more about fair use in the visual arts consult the Code of Best Practices in Fair Use for the Visual Arts by the College Art Association.]

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About Cathryn Copper

Cathryn Copper is Head of the Art & Architecture Library and an Assistant Professor at Virginia Tech.
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