The Code of Best Practices in Fair Use was created with and for the visual arts community. Copyright protects artworks of all kinds, audiovisual materials, photographs, and texts (among other things) against unauthorized use by others, but it is subject to a number of exceptions designed to assure space for future creativity. Of these, fair use is the most important and the most flexible. The Code describes common situations in which there is a consensus within the visual arts community about practices to which this copyright doctrine should apply and provides a practical and reliable way of applying it.
Assessing fair use in light of shared professional understandings is a respected practice. Invoking professional practices provides members of a community with a clear framework in which to apply fair use with confidence, knowing the shared norms of their field. Having a code of best practices allows them to share their common understandings with others—including publishing entities, distributors, insurers, and lawyers—who may make decisions on which they depend. In addition to serving as a useful tool for individuals, a code can assist institutions and their counsel in applying the doctrine and developing policies that reflect their particular concerns. Further, a code provides guidance to rights holders as to when it may not make sense for them to claim infringement in light of an appropriate invocation of fair use. Finally, although a code cannot control the judicial interpretation of fair use, it helps courts to become familiar with best practices in a professional community when called upon to rule on fair use.
The right to make fair use of copyrighted materials is a key tool for the visual arts community, although its members may not always choose to take advantage of it. They may still seek copyright permissions, for instance, to maintain relationships, to reward someone deemed deserving, or to obtain access to material needed for their purposes. But, in certain other cases, including those described in the Code, they may choose instead to employ fair use of copyrighted material in order to accomplish their professional goals.
Many members of the visual arts community employ fair use in their professional practices and many do so regularly. For instance, scholars and their editors employ fair use in the context of analytic writing (for example, in using reproductions of copyrighted artworks and quotations). Teachers rely on it—along with other copyright exceptions—to show images of works being discussed during class sessions, and, even more heavily, to provide relevant images for student use outside class. In the museum context, fair use may be employed in exhibitions and publications, and in a range of digital and educational projects. Artists may employ fair use to build on preexisting works, engage with contemporary culture, or provide artistic, political, or social commentary. And the entire visual arts community benefits from fair use when it enables enhanced access to archival materials. These are only some of the most common ways in which fair use is central to visual arts practice.
