The Robert Rauschenberg Foundation Announces “New” Fair Use Policy

Robert Rauschenberg’s “Stoned Moon Drawing,” 1969

© The Robert Rauschenberg Foundation

“The Foundation recognizes and supports the use of images of Rauschenberg artworks, for which the Foundation owns the copyright, under the doctrine of fair use.”

The Robert Rauschenberg Foundation is purporting to leave behind its old, restrictive copyright policy, in favor of adopting a new policy which seeks to make images of Rauschenberg’s work much more widely available and free. But this “new” policy is nothing new. The Foundation is simply giving the public the right to fair use of Rauschenberg’s images, a right that the public has had all along.

For years the Foundation has been part of a licensing system whose fees and permission agreements can make using images of artists works, for purposes like commentary or scholarship, both expensive and difficult. For example, licensing images for publishing an academic book can cost several thousand dollars, and while there is a lot of money in the art world, there is not a lot of money in the world of academic art books. The Foundation’s chief executive, Christy MacLear, admits that  the system has become too restrictive and has created barriers for the wrong people, such as museums and educators, whose use of images we should encourage. Thus, the foundations new policy seeks to permit borrowing of protected material for purposes like commentary, criticism, news reporting and scholarship.

But the public does not need the Rauschenberg Foundation’s approval to use Rauschenberg’s, or any other artist’s, images for these purposes. It is not a new concept that commentary, criticism, news reporting and scholarship are a valued part of society and that we should encourage the free use of artists’ images for these purposes. In fact, these purposes are specifically codified in the Copyright Act’s fair use doctrine, which states that the use of artist’s copyrighted works for purposes such as “criticism, comment, news reporting, teaching…scholarship, or research, is not an infringement of copyright.”

With this in mind, The Rauschenberg Foundation’s alleged new copyright policy seems less like a good faith attempt to benefit the public, and more like a promotional gimmick.