Visual Arts Copyright and Digital Documentation

Fair Use (Section 107) is a provision written into U.S. Copyright Law that strives to promote the creation of new culture by balancing the public interest in discovery and production of new works, against the rights of the creator of that work. It allows the use of copyrighted works “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” without the permission of the copyright owner.

A Fair Use evaluation is conducted by the user of the work and is based on examining four factors and taking into consideration supporting common law and best practices. It is recommended that Fair Use evaluations be documented and retained by the user of the work.

Fair Use can be confusing, as its application rarely carries with it the luxury of certainty. Every usage is evaluated independently by examining the balance of these four factors:

• The purpose and character of the use: What is the reason for using the work? Not-for-profit uses, such as teaching, research or scholarship, favor Fair Use, as does transformative use. Opposing Fair Use are commercial or entertainment uses, or a use that duplicates or displaces the market for the original resource.

• The nature of the copyrighted work: Published works or non-fiction works generally favor Fair Use. Unpublished or highly creative works do not. Facts themselves are not copyrightable, although a particular expression of them may be, depending upon how creative the presentation is.

• The amount and substantiality of the portion used in relation to the copyrighted work as a whole: Both quantity and quality are factors. Using a small portion of a work, or “just enough” favors Fair Use. Using the whole work, a large part of it, or the “heart of the work” does not.

• The effect of the use upon the potential market for or value of the copyrighted work: Using a copy of the work that was legally purchased, making only a few copies, or not being able to find a copy for purchase or licensing favors Fair Use. Using a copy that could be purchased or licensed at a reasonable rate, making many copies or making them widely available, or impacting the commercial market or potential market of a work does not favor Fair Use.

The Relationship Between Transformation and Fair Use

Transformation has become the cornerstone of fair use analysis in contemporary copyright law. When courts evaluate fair use claims, they increasingly focus on whether the new work transforms the original by adding new meaning, message, or purpose.

Transformation matters because:

• It directly addresses the first factor of fair use (purpose and character)
• It often reduces potential market harm to the original work (fourth factor)
• Strong transformation can outweigh commercial use
• Courts have increasingly prioritized transformation over other considerations

In artistic practice, transformation occurs when you take existing work and use it as raw material to create something with new aesthetic, message, or purpose. The more your work "transforms" the source material through recontextualization, commentary, critique, or significant alteration, the stronger your fair use claim becomes.

Key point: Merely reproducing a work in a different medium is typically not transformative. Courts look for substantive changes in meaning or message, not just cosmetic alterations.

Here are some suggested questions and things to think about when you are figuring out your fair use determination.

1. Purpose and Character of Use
   • Is the use transformative, adding new meaning or expression?
   • Commercial vs. noncommercial use
   • The more transformative, the stronger the case for fair use
2. Nature of the Copyrighted Work
   • Creative works receive stronger protection than factual works
   • Published works are more likely fair use than unpublished works
3. Amount and Substantiality Used
   • How much of the original did you use (quantitatively and qualitatively)?
   • Using only what's necessary strengthens fair use claims
   • Taking the "heart" of the work weighs against fair use even if it's a small portion
4. Effect on the Market
   • Does your use harm the market for the original?
   • Could your work replace the original?
   • Was a licensing option readily available?
   • Does your use impact markets the copyright owner might develop?

Hope by Shepard Fairey, Art Institute of Chicago

In 2008, artist Shepard Fairey created the iconic Obama "Hope" poster based on an AP photograph by Mannie Garcia without permission. Despite claiming fair use and adding stylistic elements, the lengthy legal battle ended with a settlement where Fairey agreed to pay compensation and share rights with AP.

This case highlights the importance of understanding fair use limitations and seeking permission when appropriate, especially for commercial projects.