Friday, February 3, 2023

Legal Criticism of CAA’s Code of Best Practices in Fair Use: “Perhaps the better Best Practices is no Best Practices at all.”


Columbia Law student, Amy Lehrburger, reviews the College Art Association’s Code of Best Practices in Fair Use for the Visual Arts. From her intro:

This Note argues that the Code of Best Practices is a problematic hybrid of descriptive and aspirational recommendations, instructive for artists only in terms of compliance with community norms, not with legal doctrine. Rather than offering recommendations for a better Code, I will suggest that none is needed for visual artists, in part because of their unique disposition as copyright users.

Lehrburger concludes,

Perhaps the better Best Practices is no Best Practices at all. There is little evidence that visual artists suffer the same chilling effect that the permissions culture has allegedly had on other areas of production. Notably, not a single interviewee reported asking for permission for use of copyrighted materials. The question posed by the CAA’s hypothetical—whether [the fictitious artist] Dieter needs to ask permission before incorporating copyrighted elements into his installation—seemed absurd to most visual artists interviewed: of course he does not. If visual artists are already emboldened to take freely, a Code of Best Practices intended to educate and empower them is superfluous.

I penned a few thoughts on this CAA booklet a while back (as in, last August), which you can read here. As you can see, I agree with Lehrburger that we don’t really need a little book of how to do good when appropriating. I specifically agree with her admonition that the visual arts have not witnessed the same “chilling effect” that other areas of production have, which makes one wonder why certain folks in the arts and law sectors continue to propagate this lie.

In the end, the best practice is to have self-awareness of why one is appropriating. I suppose we can call this “intent.” Otherwise, if an artist truly feels (and I use that word intentionally) that she need not ever ask for permission, then there’s not much any book–or copyright attorney–can ever say to her that would ever have any notable impact.

The CAA book was well-meant, but ultimately one has to believe that the financial resources could have been put to better use. Lehrburger seems to agree,

The artists who exercise their fair use right most widely and bravely are not necessarily the ones who understand the law most clearly; they are artists who are not scared of a cease and desist letter. In response to the “take now, apologize later” attitude that pervades the visual arts, a more useful tool would be a document that explains the appropriate way to respond to a claim of infringement, to assess potential liability in dollar amounts, and when to consult a lawyer.



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