Eliminating fear and loathing of fair use

Fair use exists to allow scholars, educators, researchers, and more to use copyrighted works without permission or paying royalties.Furthermore, fair use is one of my favorite topics to discuss regarding ethics in graphic design, because its status as a grey area leads to some of the most interesting conversations in the field. Unfortunately this same status has also caused anger and conflict in the design world, legal and otherwise.People crave rules—they want to know definitively if they can or can’t use something. I once gave a presentation on ethics in graphic design which included questions from the audience about whether or not specific artwork could be used. When it was done, I overheard a member of the audience grumbling loudly as they left because I wasn’t able to provide them with a simple yes or no about the use of an image. In this case, and others, the answer is almost always, “it depends...” (Of course, I am not a lawyer and can’t offer legal advice.) Then there is the can of worms that is opened when discussing cases like the Richard Prince/Patrick Cariou copyright case—this never fails to start a firestorm of controversy.The fair use doctrine has developed through a substantial number of court decisions over the years. When evaluating whether or not the use is fair, there are four factors that are considered:

1. What is the character of the use?
2. What is the nature of the use?
3. How much of the work will you use?
4. What effect will it have on the market for the original?

As you can imagine, the answers to the questions are almost never black and white. The size of the image reproduced, the amount used, the distribution, and how much it was changed, are just some of the questions that are asked. In fact, lawmakers have said that it’s intentionally a grey area in order to keep an open dialogue while evaluating if an image’s use was fair or not.A copyright owner has the legal right to restrict reproduction of a copyrighted work and to demand royalties when a copyrighted work is used. Penalties for unauthorized copyright can be substantial. With this in mind, it makes sense to have an idea about whether or not your use of copyrighted work is defensible. Subsequently, some find the whole business so unpleasant that they avoid it all together.The president of CAA (College Art Association) and others are concerned that fear of copyright infringement may be stopping people from creating innovative work that adds to our culture. A recent study showed that 1 in 5 Artists, 3 in 10 Museum staff, and 4 in 10 academics state that they avoid issues of fair use when making, researching, and exhibiting art.In “Fair Use at Work in the Visual Arts,” a video that they’ve produced to educate and inform artists, educators, and researchers about the topic, they state that when courts look at fair use cases they look primarily at two things: is the work transformative and is the amount of work is proportionate? If the answer to these two questions is affirmative, the track record shows that the work will most likely be considered fair use and non-infringing.CAA has created a code of best practices to help navigate these murky waters and to encourage scholars and artists to work freely and uninhibited.How about you? Are you feeling more confident about fair use and copyright, or more fearful?Sources:http://www.expertlaw.com/library/intellectual_property/fair_use.htmlhttp://cmsimpact.org/fair-use/best-practices/fair-use-visual-arts#CodeStarthttp://copyright.gov/fair-use/more-info.htmlhttps://www.youtube.com/watch?v=wC-wfVfIXiw