fair use and the visual arts

NORMS-SHIFTING FOR DIGITAL AND ONLINE

ARTS PRACTICEPATRICIA AUFDERHEIDE, ARAM SINNREICH AND LOUISA IMPERIALE

OCTOBER, 2016

ASSOCIATION OF INTERNET RESEARCHERS

SURVEY• A year after creating Code of Best Practices in Fair

Use for the Visual Arts• C. 1900 U.S. respondents • Via College Art Association • Academics, museum professionals, editors, artists• Early career, mid, veteran • Compare with 2013 survey

QUESTIONS• How high was awareness?

• Did awareness bring trust?

• Did awareness change behavior?

MAJORITY USE COPYRIGHTED WORK

10.96

35.11

19.84

13.84

15.74

4.41Always

Frequently

Sometimes

Rarely

Never

Not sure

ONE-THIRD OF RESPONDENTS AVOID, ABANDON, AND DELAY PROJECTS DUE TO

COPYRIGHT

Avoided or abandoned Delayed0%

10%20%30%40%50%60%70%80%90%

100%

Always Frequently Sometimes Rarely Never Not Sure

FAIR USE IS UNDERUSEDMore than four-fifths of CAA members use copyrighted work, but only one-fifth employ fair use

whenever they do.

Al-ways0.41

Frequently0.19

Sometimes0.15

Rarely0.13

Never0.11

Unsure0.04

Used copyrighted works

Always41%

Frequently19%

Sometimes15%

Rarely12%

Never11%

Sought permissionAlways

38%

Frequently27%

Sometimes16%

Rarely6%

Never4% Unsure

9%

Relied on fair use

Didn’t alwaysseek permission

Yes (80%)

(59%)

Absolut

ely ne

cessar

y for

creato

rs_x00

0d_

very u

seful

somew

hat u

seful

Not sur

e

Somew

hat d

amag

ing

Very da

maging

Total

ly unfa

ir for

creato

rs0%

500%1000%1500%2000%2500%3000%3500%

29% 29%

12%

23%

5% 1% 1%

FAIR USE VALUED BUT...“How useful or damaging do you think fair use rights are for creative expression?”

MANY SEEK OTHER UNLICENSED OPTIONS

Always3%

Fre-quen

tly11%

Sometimes16%

Rarely9%Never

47%

Unsure14%

Used Open License to Share Own

WorkAlways

3%

Fre-quen

tly19%

Sometim

es26%

Rarely13%

Never26%

Unsure14%

Used Others’Openly Licensed

WorkAlways

6%

Fre-quently

36%

Sometimes32%

Rarely10%

Never10%

Unsure5%

Used Others’Public Domain

Work

RESPONDENTS VALUE CREATIVE COPYING

Series1

91%

90%

82%

89%

82%

68%

Series1

95%

93%

87%

95%

92%

76%

Creative appropriation can be “original”

Creative appropriation shouldn’t necessarily require permission

CAAMembers

DocumentaryFilmmakers

GeneralPopulation

U.S.

Non-U.S.

U.S.

U.S.

U.S.

U.S.

U.S.

Non-U.S.

Non-U.S.

Non-U.S.

Non-U.S.

Non-U.S.

RESPONDENTS: UNCERTAINTYLIMITS MY CREATIVITY

Yes43%

No57%

What would change:• More appropriative art• Publish more• Share work online• Improve educational

techniques• Fewer

meetings/calls/emails

2013/2016•Strongly similar overall patterns

•Licensing is still the norm, despite difficulties

•Visual arts professionals have reasons to find alternatives

CHANGES SINCE THE CODE WAS ISSUED, FEB. 2015

AWARENESS AND TRUST

64.1%

35.9%

2/3 HAVE HEARD ABOUT THE CODE

67.2%

32.8%

1/3 HAVE TOLD SOMEONE ABOUT IT

WHO THEY TOLD ABOUT THE CODE

Colleagues Students Administrators Conference Atendees

0

10

20

30

40

50

60

70

80

90

100

87%

35% 31% 21%

ASSOCIATIONS ARE POSITIVE“What words would you associate with fair use?”

CODE USE LEADS TO CHANGE

Yes63%

No37%

Aware of Code

Yes51%

No49%

Used Code

No

No

No38%

Pre-Code14%

Post-Code3%

Pre & Post21%

N/A24%

No41%

Pre-Code16%

Post-Code1%

Pre & Post22%

N/A20%

No29%

Pre-Code15%

Post-Code8%

Pre & Post36%

N/A12%

Employed Fair Use

Yes

CONCLUSIONS

• Education matters; behavior changes with knowledge, confidence

• Peer support matters; it validates new knowledge

• Institutional action, well publicized, matters

• The newest are most likely to change quickly, but the most veteran are in the best position to teach

• Teachers need to build into curriculum

CMSIMPACT.ORG/FAIR-USE

CMSIMPACT.ORG/VISUALARTS

paufder@american.eduaram@american.edu