Saturday, February 14, 2015

Code of Best Practices in Fair Use for the Visual Arts

The College Art Association recently released a Code of Best Practices in Fair Use for the Visual Arts, which you can read here. It's already gotten some attention & I imagine it will get a lot more. On the whole, I'm a fan of the best practices codes promoted by Peter Jaszi & Patricia Aufderheide. They tend to provide several helpful functions, including identifying social norms, providing fair use heuristics for participants in a field of creative work, and staking out prima facie fair uses in a particular field. Unfortunately, I'm not sure this Code will be as useful as some of the others. Saying that "artists should avoid uses of existing copyrighted material that do not generate new artistic meaning" and "the use of preexisting work ... should be justified by the artistic objective" isn't terribly helpful, or really anything more than a restatement of Section 107 of the Copyright Act.

However, I'm inclined to think that Jaszi & Aufderheide aren't to blame. The strength & weakness of codes of fair use (and other similar codes) is that they are intended to synthesize existing social norms. That is a very effective strategy when (reasonably?) well-defined social norms exist. But my reading of this new Code is that it's inability to provide clear guidance reflects a fundamental lack of agreement on social norms relating to copying and other uses of existing material, among visual artists. A cynic might suggest that this lack of agreement further reflects a certain tendency toward hypocrisy among visual artists, who can readily rationalize their own copying, but object to copying by others. More specifically, there are many nesting insider & outsider norms, so "ethical fair use" in the visual arts tends to reflect relational norms, more than objective ones.