Fair Use & Ethics

6 Economics, Morality, and Artistic Rights

Laura Dimmit

Intended Audience: Lower-division undergraduate studio art students

Session Length: 60-90 minutes

Code Section: Making art

ACRL Frame: Scholarship as conversation

Abstract

The first section of the lesson introduces students to the vocabulary of artistic permissions and rights management—public domain, open licenses, traditional all-rights-reserved copyright, and fair use. This baseline knowledge sets up the second section of the lesson, focused around two contemporary case studies. For this class, students will be introduced to the dispute between the creators of two sculptures occupying the same New York City park, “Charging Bull” and “Fearless Girl.” They will then examine issues of attribution and compensation through a case of uncredited Twitter content being reformatted and sold. Working in small groups, students are prompted to examine the tensions between artistic intent and public interpretation, as well as the case for either fair use or copyright infringement.

Learning Objectives

Students will:

  • Articulate differences between public domain, open licenses, and all-rights-reserved copyright.
  • Critically engage with contemporary case studies related to fair use and artistic ownership.
  • Reflect on “quotation” and other referential decisions in their own creative practices.

Materials

Suggested readings for Case Study #1:

Suggested readings for Case Study #2:

Lesson Plan

Prior to the session: coordinate with the instructor so that students can bring a completed visual project from earlier in the quarter/semester.

Begin class with a think/pair/share prompt. (About 5 minutes.) Invite students to think about a time when their understanding or opinion of an event, issue, or concept changed after they encountered a new visual representation. What was it about the visual that altered or influenced their understanding?

Use student responses to introduce the broader themes of the class session: the tensions between artistic intent and public interpretation, and the extent of artistic rights outlined by copyright and fair use.

Ask students to generate a list of what they already know about copyright. (About 5 minutes.) Use a whiteboard or a shared Google document. This list of facts, definitions, and possibly misconceptions can guide the next portion of the lesson.

Using either the provided slides or your own materials, guide students through the following concepts: (About 20 minutes.)

  • The spectrum of author permissions: public domain, open licenses, and all-rights-reserved copyright.
    • Discussion question: Why would you want to retain copyright for something you created?
  • Transformative Use
    • Introduce the “limitations” outlined in section “Three: Making Art” of the Code. Frame these limitations as all relating to the idea of transformation.
    • “Four factors” of fair use is another way that this issue gets talked about, especially when there is a legal dispute.
  • Include at least two examples of individuals using the work of others (as modeled in the provided slides), one which was found to be transformative or “fair use” and one which was not.
  • Visual Artists Rights Act (VARA)
    • Emphasize that these are rights specifically for creators of visual art.
    • Differentiate between economic rights and moral rights.

If time permits, have students reflect on their completed projects with a free-write or think/pair/share: what would they view as a “a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation”?

As a follow up: did any students come up with examples for the previous prompt that would actually be considered new works? Remind students that in such a case VARA would no longer apply. How do they feel about that?

Art as Conversation case studies

These two recent scenarios provide an opportunity to work through the economic and moral complexities of ‘making art.’ Specifically, these case studies illustrate outcomes of ‘building on existing culture,’ as outlined by the Code. While the two case studies suggested should remain relevant for some time, feel free to swap in other situations that speak more to your particular institutional or pedagogical circumstances. (About 60 minutes—to adapt for a shorter session, one case study can be used instead of two.)

“Charging Bull” and “Fearless Girl”

Start by giving students some brief details about the two statues: who created them, how and where they were installed, etc. One of the provided slides contains details about both statues, which you can use as a starting point. Note: There is a “Charging Bull” live webcam that you can show, if desired: http://chargingbull.com/video.html

Introduce the threads of tension

  • Di Modica, creator of “Charging Bull, protested the placement of “Fearless Girl”: “[His] lawyers say that “Fearless Girl” has subverted the bull’s meaning, which Mr. Di Modica defined as “freedom in the world, peace, strength, power, and love.” Because of “Fearless Girl,” [his lawyer] said, “‘Charging Bull’ no longer carries a positive, optimistic message,” adding that Mr. Di Modica’s work “has been transformed into a negative force and a threat.” (Quoting from coverage in the New York Times.)
  • Reading the message of “Fearless Girl” as genuine or Wall Street marketing: Can the feminist message of the statue coexist with critiques of it being commissioned by an investment company? New York City Mayor Bill de Blasio tweeted, “Men who don’t like women taking up space are exactly why we need the Fearless Girl.”

Possible Discussion Prompts

  • While VARA does not apply to artworks created before 1990, we can still consider whether Di Modica would have a claim to say that his work has been unfairly modified by the addition of “Fearless Girl.” In small groups, have students explore some additional commentary about the two statues before coming to a decision about how VARA applies (two suggested blog posts are included in the “Materials” section, but you could also give students 5-10 minutes to search on their own).
    • Additional questions for students: Whether or not VARA should apply, is this a “transformative” use?
  • The addition of “Sketchy Dog”/”Pissing Pug”: In May 2017, several months after “Fearless Girl” was placed in front of “Charging Bull,” New York artist Alex Gardega added his own voice to the artistic conversation with a small statue of a peeing dog, placed such that it appears to be urinating on the leg of “Fearless Girl.”
    • Gardega, speaking to the Washington Post: “The logic explains itself….The dog invading her space is reflective of her invading the space that belongs to the bull. I happen to know someone who knows the artist who made the bull, and so I know what he put into that work….He dropped about $350,000 of his own money into the sculpture, and ‘Fearless Girl’ statue changes the meaning.”

Frank Ocean’s T-Shirts

  • As with the first case study, start with a brief overview of the facts. There is a slide provided, but you can also share this information in other ways, or ask students to read a news article in advance (two suggested articles are included in the “Materials” section).
  • Link to shirt, still for sale by Green Box Shop.
    • The attribution listed on the website that links to the original tweet was added after the shirt was originally for sale.

Introduce threads of tension

  • Attribution and Compensation: The idea to put the text of an original tweet onto a shirt came to Green Box from a direct message on Twitter that, itself, did not include the original tweet from Brandon Male. Twitter and similar platforms are designed to facilitate broad sharing of other people’s works, but in this case, the final format of the shared work (a shirt) was something that was making money.
  • Opt-out vs opt-in: The rights guaranteed by copyright law are “opt-out,” not “opt-in.” As soon as something is “fixed” in a tangible medium, it becomes subject to copyright protection. Title 17 defines “fixed” in the following way: “A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.”1

Possible Discussion Prompts

  • From Vogue Magazine: “Policing copyright and intellectual property laws is always the right thing to do. But in this case, the sentiment behind the statement seems to have gotten lost in the noise….This is where the focus should be, on a brave young kid who stood up for himself and for others like him. And the fact that Robinson wanted to print his words and promote them, even for a small profit—what’s so wrong with that?”2
  • Tweets are an example of a medium that is designed to be shared widely. So, where do you draw the line between “sharing” and intellectual property infringement?

Reflection

This lesson was originally developed for a two-course learning community that combined a 2D-design course with an introductory cultural studies course. The theme for this learning community was “The Art of Protest,” and students completed a series of visual projects throughout the quarter, including a set of Peace Poles that now stand at the center of our campus in a community garden.

Since this learning community was explicitly interested in the relationship between art and cultural representation, as well as the ways in which art influences people’s perceptions of ethics and justice, it was a natural fit to bring in themes of artistic ownership and attribution. Many of the students in this learning community had little or no formal art education, so both the course instructors and I saw this as a valuable opportunity to frame artistic rights in a comprehensive and nuanced way.

As I tried to develop a strategy for introducing several big concepts—fair use, copyright, and incorporating existing art into new works—all in just an hour, I kept returning to an idea from the ACRL Information Literacy Framework that scholarship should be a conversation. For me, it was most important that students were given ample space to grapple with and apply the concepts introduced in the first part of the lesson. Much as it can require an additional level of expertise to instruct others in an area, students can benefit from the opportunity to practice articulating the underpinnings of artistic ownership for themselves, as both a reinforcement and a way to discover further questions.

The Code section “Three: Making Art” acknowledges that today’s artistic landscape is grounded in quotation, remixing, and the dialogue that can be generated between two or more works. I sought case studies for this lesson that exemplified these themes. The first case study, about the statues “Charging Bull” and “Fearless Girl,” clearly addresses this dialogue, as well as the moral questions that surface when one artist re-contextualizes the work of another. The second case study, about unattributed social media content being reformatted and sold, presents the economic aspects of copyright and the complexities of giving credit when reposting content on social media platforms.

In part, I think because I was working with an immersive learning community, my experience teaching this lesson for the first time were very positive. Students were engaged with the content, generated questions, and seemed to enjoy being charged to reason with the case studies in groups. With a lesson that depends so much on small group participation, there are potential challenges for groups that are for any reason more tentative, but these are the same challenges that exist for many active learning strategies. The first half of the lesson, prior to the case studies, could probably be reformatted and assigned as a pre-class assignment if time is an issue or you wanted to experiment with a more “flipped” model.

References

  1. Chapter 1: Subject Matter and Scope of Copyright. Copyright Law of the United States (Title 17). Retrieved from https://www.copyright.gov/title17/92chap1.html
  2. Bobb, B. (2017, August 3).Brandon Male Wants You to Know Why He Tweeted the Words Worn by Frank Ocean. Vogue Magazine. Retrieved from https://www.vogue.com/article/fashion-runway-frank-ocean-t-shirt-panorama-brandon-male-twitter

License

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

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