They never actually used the “A” word.
But the College Art Association (meeting this week in New York) has just issued some needed guidance for appropriation artists who fear running afoul of copyright laws. CAA’s 22-page Code of Best Practices for Fair Use in the Visual Arts, available free online, may help stem the tide of lawsuits targeting artistic appropriation, by providing artists with detailed information regarding the legal limitations on use of other people’s copyrighted material.
At the risk of infringing on CAA’s own copyright, here’s the section from its “Code of Best Practices” pertaining to “Making Art” (p. 11):
For centuries, artists have incorporated the work of others as part of their creative practice. Today, many artists occasionally or routinely reference and incorporate artworks and other cultural productions in their own creations. Such quotation is part of the construction of new culture, which necessarily builds on existing culture. It often provides a new interpretation of existing works, and may (or may not) be deliberately confrontational.
Increasingly, artists employ digital tools to incorporate existing (including digital) works into their own, making uses that range from pastiche and collage (remix), to the creation of new soundscapes and lightscapes. Sometimes this copying is of a kind that might infringe copyright, and sometimes not. But whatever the technique, and whatever may be used (from motifs or themes to specific images, text, or sounds), new art can be generated.
Artists may invoke fair use to incorporate copyrighted material into new artworks in any medium, subject to certain 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 preexisting 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.
CAA’s “Code” also addresses fair-use issues pertaining to “Analytic Writing,” “Teaching About Art,” “Museum Uses” and “Online Access to Archival and Special Collections.” As the brochure states: “Please feel free to reproduce this work in its entirety.”
Reasonable (and unreasonable) lawyers will likely find things to quibble with in this document. And following its advice is no guarantee against getting sued. But to this non-expert, CAA’s effort (informed by the wisdom of a long list of advisors) seems like an excellent, much needed step towards addressing the complexities of this vexing issue.