Fair Use & Appropriation Art

8 Copyright and Fair Use Instruction for Art and Design Students: A Visual Approach

Allan Kohl

Intended Audience: Advanced undergraduate or graduate art students; session is adaptable 

Session Length: Introductory lecture portion is 50—70 minutes; guided discussion is 45—60 minutes

Code Section: Making art

ACRL Frames: Information creation as a process, Information has value

Abstract

The Professional Practice course at the Minneapolis College of Art and Design (MCAD), intended to help art and design students develop practical career skills, is structured around a series of afternoon-long presentations by guest speakers. The session dealing with copyright, contracts, and licensing is co-presented by MCAD’s Visual Resources Librarian and a Minneapolis attorney practicing in art and entertainment law.

Copyright is presented as a legal framework balancing the interests of content creators and content users, reminding students that they need to know how to protect and benefit from their own work, while also developing ethical and legally sustainable parameters for building upon existing works created by others.

The two facilitators introduce basic concepts of copyright law—such as the public domain, derivative works, fair use, transformative re-use, and “work for hire”—through lecture, display, and guided discussion of visual examples, including works by contemporary local artists. The course also introduces students to fair use guidelines formulated by user communities.

Learning Objectives

  • Students will develop their ability to evaluate the originality of form and content in existing visual works created by others
  • Students will apply sustainable legal and ethical standards for appropriating, quoting, or transforming various elements of existing works created by others for incorporation into their own creations

Materials

  • This class presentation is based on an extended PowerPoint developed by the instructors, from which ten representative examples have been selected for inclusion with this lesson plan (see appendix 6)
  • In conjunction with this class, the instructors’ notes and links to online resources are also posted on the online course pages of the Professional Practice class.

Lesson Plan

The College Art Association’s Code of Best Practices in Fair Use for the Visual Arts section “Three: Making Art” provides the student artist or designer with practical guidelines for applying copyright principles to their own practice. This resource can be introduced early in the lesson, and specific examples can then be used to illustrate the Code’s recommendations.

MCAD students tend to have a highly visual learning style, so our presentation of the basic concepts and principles of intellectual property law is based on visual examples along with verbal and text-based information. We begin by covering a set of basic terms, principles, and definitions, derived in part from the “Principles and Definitions” section of the Visual Resources Association’s Digital Image Rights Computator (DIRC), an online rights assessment tool:

  • What is copyright?
  • How does copyright work?
  • How do I secure copyright in a work I create?
  • How long does copyright protection last?
  • What is the “bundle of rights” in a copyright?
  • What is the public domain?
  • What is fair use?
  • What is a derivative work?
  • What is a transformative work?
  • When I sell my work, do I also give up the copyright?
  • Do I have any rights in my collaborative work for an employer such as a design firm, or a “work for hire” commission?

Whenever possible, we help to answer the questions in this outline with images that clarify abstract concepts and, in some instances, provide the class with opportunities for discussion or expansion.

A common initial question students ask is: “How do I get copyright in a work I create?” If no one volunteers such a question, the facilitator might ask: “Do any of you know how to copyright your work?” The easy answer would be that, under the current United States Copyright law, a creator automatically establishes copyright when a work is “fixed in a tangible form of expression.” But what exactly does this mean for the visual artist? For the student who works in traditional media, such as painting, sculpture, or printmaking, this might be when the artist affixes a signature, records a date or edition number—or simply declares that the work is finished. Completion can be further documented in a photograph or other record of the work, or through written evidence such as a consignment to a dealer, or a sales receipt to a purchaser. The U.S. Copyright Office’s Circular 40A:  Registration of Claims to Copyright in Visual Arts Material offers additional media-specific guidance.

However, an increasing number of our students work primarily with digital media, and may have a more difficult time knowing when a “born digital” work can be considered “fixed in form.” Here the facilitator can invite discussion with open-ended questions such as “When do you think that a ‘born digital’ work could be considered ‘fixed in form’?”  “If you have created a ‘born digital’ work, how might you document that it has indeed been ‘fixed in form’?” Then, through discussion, the facilitator could guide students to think about using some combination of file naming and saving, time stamps, embedded metadata, and file sharing protocols.

As straightforward as the principle of “automatic copyright” may at first appear, students need to be reminded that “fixed in form” does not apply to an unrealized idea, a concept, a technique, or a proposal (except, of course, for any tangible components such as preliminary sketches, storyboards, etc.). Also, the manner of working that comprises an artist’s “signature style” is generally not copyrightable either. To illustrate this point, we look at Norman Rockwell’s “The Connoisseur,” [Example #1, see appendix 6 for illustrations] in which a middle-aged man is depicted looking at a work that most visually literate viewers would recognize as one of Jackson Pollock’s Abstract Expressionist “drip paintings.” Except that the painting on the wall isn’t actually a Pollock at all, but rather Rockwell’s skillful use of the characteristic aspects of Pollock’s style. In this way, Rockwell established his own copyright in the illustration while avoiding infringing on any of Pollock’s copyrights!

Understanding the concept of “derivative works” is important for visual artists as they build upon and re-examine the precedents and prototypes provided by the world of existing art. As upper division students, most of our course participants realize that no work of art is created in a vacuum; each piece of visual culture rests upon an existing infrastructure of intellectual and creative content, which provides the artist and designer with prototypes, precedents, and cultural context to build upon–or to react against.1

The history of art is replete with examples of “homage works,” works that are significantly based on historic prototypes while providing a form of critical commentary on the originals. [Example #2] Edouard Manet’s intentionally shocking Olympia (1863) was based on Renaissance paintings of female nudes such as Titian’s Venus of Urbino (1534). Manet’s work in turn inspired Mel Ramos’ Manet’s Olympia (1973) in the style of a men’s magazine centerfold, and Larry Rivers’ ironic racial inversion I Like Olympia in Blackface (1970). The impact of the two latter works, in fact, depends in large part on the viewer’s recognition of the Renaissance and Modernist works they reference.

Once students understand the concept of derivative works, they can immediately grasp the importance of the public domain in providing them with material that they can freely adapt and re-use. They see how contemporary graphic designers, like Minneapolis artist Adam Turman, use public domain works like Alphonse Mucha’s 1902 Art Nouveau poster as the inspiration for a new expression with a similar theme and composition. [Example #3] Norman Rockwell copied the figure pose of the Prophet Isaiah from Michelangelo’s Sistine Chapel fresco for his magazine cover illustration of Rosie the Riveter. [Example #4]  Although Rockwell’s specific adaptation is protected by copyright, the idea of re-using figures and compositions from historic works of art is not; other artists are free to make contemporary updates of this and other works. Many illustrators, comic artists, and graphic novelists do just that, as we demonstrate by examining how James Allen has borrowed the twisted torso, running legs, and agonized face of Cain from William Blake’s The Body of Abel Found by Adam and Eve in the figure of Mark Trail for a syndicated newspaper comic strip. [Example #5]

The Bridgeman v. Corel case (25 F.Supp.2d 421 (S.D.N.Y. 1998)) established that straightforward photographic reproductions of two-dimensional public domain art works are not copyrightable. Dean Rohrer’s “Monica Lewinsky” cover for the New Yorker is a partial re-working of a reproduction of Leonardo da Vinci’s familiar Mona Lisa. [Example #6] Today, many major museums are making robust digital images of works in their collections readily available on-line, and some no longer attempt to restrict how people may download and use these images. This gives Photoshop-savvy students the freedom to modify images of historic paintings and incorporate these into their new digital creations.

Once they understand the importance of public domain content in the creation of derivative works, students are ready to explore the possibilities of fair use. We review the four statutory fair use factors (17 U.S.C. § 107), and the specific uses of copyrighted works permitted, including criticism, comment, news reporting, and teaching.

Visual references and quotations are often key elements of parody, satire, and other forms of artistic humor. Courts have generally held that parody (quoting a work to provide a humorous critique of that work) is among the permitted fair uses of copyrighted works. However, the legality of copying a work for purposes of satire (using a quoted work as the basis for humorous criticism of something besides the quoted work) is sometimes less certain. Although  such uses have also been upheld as legal in specific instances, much depends on the purpose, character, and amount of quotation. As the Code recommends, the artist should be prepared to articulate a clear rationale for any such use.

Among the most frequently “quoted” works of twentieth century art is Grant Wood’s iconic American Gothic, in which the portraits of an old farmer and his spinster daughter have come to represent traditional, often conservative, American values. One can make the case that a humorous visual reference to Woods’ painting, like this cover of a Minneapolis magazine, exemplifies both parody and satire.  [Example #7]

One of the most crucial objectives of copyright and fair use instruction for visual artists is for students to develop a clear understanding of what is meant by “transformative use.” In its 1994 Campbell v. Acuff-Rose decision, the United States Supreme Court articulated a transformative use as one that “adds something new, with a further purpose or different character, altering [the original] with new expression, meaning, or message.2 In his review of subsequent court cases testing the parameters of transformative use, legal scholar Neil Weinstock Netanel noted that such uses may involve “transforming the expressive content of the original work by modifying or adding new expression [or by] transforming the meaning or message of the original.”3

The combination of transforming content and transforming message lies at the heart of most acts of artistic appropriation. In exercising their judgment about whether, and to what degree, they may borrow or quote from an existing copyrighted work, it is important that students understand how the doctrine of transformative use has evolved in recent court judgments as an expansion upon the four statutory fair use factors.4 We preface this section by showing two cases of artistic appropriation based on copyrighted works. One is a familiar example of Roy Lichtenstein’s use of several elements from different panels of a story in DC Comics’ All-American Men of War #89, published in early 1962, for his Pop Art painting O.K. Hot Shot, dated later the same year [Example #8]. The other example, the title panel from Trina Robert’s comic “Lulu’s Back in Town,” is based on a 1934 painting by Reginald Marsh [Example #9]. Together, these two examples demonstrate that the process of appropriation and transformation goes both ways between so-called “serious” art on the one hand and popular visual culture on the other.

To conclude this lesson, we review the College Art Association’s Code of Best Practices in Fair Use for the Visual Arts and discuss how students can use the information we have shared with them to conform to the practices recommended  in section “Three: Making Art”. Consider, for example, the Code’s statement:

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.

To put this recommendation into practice, we ask the students to assess a clear instance of an artist “taking” a portion of a copyrighted work in another medium to decide whether this is a justifiable transformative use or an act of copyright infringement [Example #10]. Students are invited to put themselves in the place of painter Malcolm Liepke and articulate their defense of his appropriation (or, taking the opposing side, role-play photographer Nan Goldin and demand to know why this act of copying shouldn’t be considered an infringement of her work!).

We conclude the lesson by briefly presenting the portfolio of fair use guidelines formulated by user communities, and made available through the Center for Media & Social Impact (CMSI) at American University in Washington, DC, as well as the US Copyright Office’s natural language explanation of fair use and how it is typically applied. Links to all of these resources can also be posted on the Professional Practice (or relevant class) course pages.

Reflection 

At present, this unit on copyright, fair use, and licensing is part of the third-year curriculum in MCAD’s Professional Practice course. Although this content is probably most relevant to upper-division students nearing the completion of their degree programs and anticipating their future careers as working artists and designers, I believe that at least some of this basic information should also be presented to our Foundation (first-year) students, so that they can proceed through their entire four-year degree sequence equipped with a solid, workable understanding of copyright and fair use. Our Foundation year includes two semesters of art and design history, in which students have many opportunities to observe examples of artistic “borrowings,” homage works, and similar stylistic quotations which could inspire their own projects, while at the same time offering them historic precedents to re-use as raw materials. Early instruction would also give our students the opportunity to explore concepts such as fair use and transformative use in their projects and assignments, while cultivating their ability to explain and defend their choices in critiques before their instructors and peers. This goal conforms with the Code, which advises that “the use of a preexisting work, whether in part or in whole, should be justified by the artistic objective, and [that] artists who deliberately repurpose copyrighted works should be prepared to explain their rationales both for doing so and for the extent of their uses.”

This presentation will continue to evolve, reflecting the legal environment seen in recent court cases; it will also be refined in response to questions raised by students during discussions each year. I continue to update this lesson by seeking new examples to illustrate what might otherwise be just a series of dry, text-based bits of information. When possible, I look for examples of works by local and regional artists with whom our students might be familiar. Although I have spent many years as an information professional learning about copyright issues, advocating for an expansive understanding of fair use, and putting my expertise to work in my own professional practice, each time I prepare to teach this unit I try to put myself in the position of the student who doesn’t have this background, and who will perhaps be thinking: “Don’t just tell me about some legal concept—show me examples that help me understand what you’re talking about, and how it relates to my own work!”

References

  1. This understanding is expressed in Judge Pierre N. Leval’s commentary “Towards a Fair Use Standard,” (103 Harvard Law Review 1005 1989-1990) which set forth the legal argument subsequently adopted by the U.S. Supreme Court in its articulation of “transformative use” as a valid expansion of the statutory fair use definition in the Campbell v. Acuff-Rose decision (Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994).). Leval noted that “all intellectual activity is in part derivative. There is no such thing as a wholly original thought or invention. Each advance stands on building blocks fashioned by prior thinkers . . . important areas of intellectual activity are explicitly referential [and require] continuous examination of yesterday’s theses (1109).”
  2. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).
  3. Neil Weinstock Netanel, Making Sense of Fair Use, 15 Lewis & Clark L Rev 715, 746 (2011).
  4. Ibid.

 

License

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

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