Fair Use & Ethics

5 Copyright and Fair Use for Graduating Studio Art Majors

Jessica Hronchek

Intended Audience: This lesson is designed for upper-level undergraduate studio art majors. Particularly, it was incorporated into a seminar for seniors participating in the capstone art show.

Session Length: This session takes about 90 to 120 minutes, d.epending on the length of discussions. It would also be possible to shorten it by dividing the session between two days and having students research their case studies outside of class.

Code Section: Making art

Abstract

This lesson was designed as a part of a seminar for art majors preparing work for their Senior Show and is intended to inform students preparing to begin careers as practicing artists or art educators. The lesson incorporates a short lecture on copyright and fair use, a class discussion about copyright and artistic practice based on preparatory readings, an in-class research exercise of art copyright case studies, and student presentations on their findings and opinions. In addition to raising awareness of copyright and the CAA Code of Best Practices in Fair Use for the Visual Arts, this lesson is particularly apt for helping students grapple with the ethical complexities surrounding the artistic use of other artists’ work.

Learning Objectives

Studio Art Majors will:

  • Describe the legal rights surrounding their art.
  • Identify how fair use impacts their practice.
  • Examine the legal and ethical complexities that surround artists’ perspectives on these issues, using case studies from the news.

Materials

  • The instructor will need a computer and projector for the presentation, and students will need at least one computer/laptop for each pair of students if the case study research is taking place in class.
  • Lecture and Discussion Slides (Artist Copyright Slides), Art Copyright Handout, In-Class Copyright Case Studies (see appendix 4)

Lesson Plan

Homework

Prior to class, students are assigned to read the “Introduction” (pgs. 5-6) and “Three: Making Art” (pg. 11) of the Code. They are also given a short article that highlights artists’ perspectives on copyright and art. Different articles can be used, but one recent example is:

  • Grant, Daniel. “Can Inspiration Overstep Its Bounds?” Crafts Report 40 no. 461 (2014): 32-35. Accessed June 21 2017 http://www.firemountaingems.com/resources/jewelry-making-articles/e8am

Instructors may select more up-to-date articles, but try to find ones that include artists’ emotional, moral, and/or legal reactions to particular cases.

Lecture (15-20 min)

The class session begins with a brief lecture on copyright law and fair use as it impacts artists. Because the learning objectives include broader ethical considerations, it also mentions the Artists’ Moral Rights Act. (See attached slides for more detail on lecture content.) In order to make the topic feel more practical to practicing artists, use art examples pulled from the teaching faculty member’s body of work or other art recognizable to the students. The students are provided with a handout that summarizes the basics of copyright and fair use and also includes an excerpt from the Code.

Discussion (30 min)

The class then turns to a discussion of the cases mentioned in the assigned article, asking students for their reactions and the ways the CAA Best Practices impact their interpretations. Slides remind students of the works under discussion. Possible guiding questions to use:

  • Who do you agree with? Lauren Clay or the David Smith Estate? Is it enough change? How do you decide?
  • What about Prince and Cariou? The courts sided with Prince, but not in a way that made it particularly clear where the line is drawn for transformative use. Do you think there is a black and white line for “transformation”?
  • David Dodde–Is this work, as the Calder Foundation claims, an “abomination”? Did this infringe on an artist’s moral rights?  (This example has particular resonance because Hope College is in West Michigan. A more nationally known example could be Arturo di Modica’s Charging Bull vs. State Street Global Advisor’s Fearless Girl.)
  • Look again at the the Code section “Three: Making Art”. How does this influence your interpretation?
  • Does it matter if one artist is more successful than another? Is there a power differential?
  • Though not included in the article, I also like to cite the example of Patricia Caulfield and Andy Warhol (see slides). This allows for discussion in the following areas:
    • Do certain genres of art get more protection in copyright cases?
    • Do gender, race, and class have a part to play in these broader discussions?
  • What do you think is an ethical engagement with another artist’s work vs a legal one? Does it matter?

Student Research (15-20 min)

Divide the class into groups of 2-3 students and pass out one copy of the “Copyright Case Studies” handout to each group. Assign each group one of the legal cases listed on the handout. (The list of cases can be expanded and updated as needed.) Tell the groups to do online research to learn about their assigned cases. In their groups, students should discuss the cases and answer the exploratory questions on the handout. Tell them to be prepared to present their findings and thoughts to the rest of the class.

Student Presentations (30-45 min)

Student groups take turns giving informal presentations on what they learned and their group’s discussion. They share any example images they found that highlight the issues, summarize the key points of the disagreement and/or trial, and give the results. They also share their group’s perspectives on the case and which side they agreed with more. The librarian and faculty instructor can step in with guiding questions or observations as needed.

Reflection

This session was created when an instructor reached out to me for assistance in teaching a section on copyright, which was a mandatory part of the senior show seminar. We planned the session at the end of the semester when the students were wrapping up their preparation for the show, which allowed us a generous amount of time in which to engage the topic as well as more flexibility to assign outside readings, which is not always the case for information literacy one-shot sessions. This lesson plan is intentionally structured around active learning exercises, and, for this reason, depends a lot on student participation. Class dynamics will impact the level of success of these activities. Because the students in this particular course worked so closely together all semester, I think this facilitated more productive and organic discussion.

The outside reading chosen may have an impact on the students’ understandings of how much freedom comes under fair use. In an earlier version of the lesson I had utilized a historical article that I considered a very strong reading because it highlighted artists’ perspectives, included several important historic copyright cases, and hinted at the broader ethical and social issues. As class discussion progressed though, I realized that it struck a more conservative tone on how artists may use other artists’ works. This may have led the students to adopt a more hesitant stance on fair use than I and the instructor intended. For later iterations, I selected a more contemporary article, that, while not mentioning the Code, was more reflective of the current legal understanding of Fair Use.

References

  1. Gay Morris. “When Artists Use Photographs: Is it Fair Use, Legitimate Transformation or Rip-off?” ARTnews, January 1981, 102-106.

License

Fair Use in the Visual Arts: Lesson Plans for Librarians Copyright © 2018 by Jessica Hronchek. All Rights Reserved.

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