Code of Best Practices in Fair Use for the Visual Arts: Envisioning Version 2.0

In 2015, the College Art Association released its Code of Best Practices in Fair Use for the Visual Arts: https://www.collegeart.org/programs/caa-fair-use/best-practices. The Code aimed to help scholars, educators, artists, and museums better understand and defend uses of existing creative works under the U.S. Copyright Act’s fair use doctrine.

Much has changed since publishing the Code. Court cases like Cariou v. Prince and Warhol Foundation for the Visual Arts, Inc. v. Goldsmith have forced reassessment of fair use’s “transformativity test,” asking to what degree commentary or criticism are necessary in a fair use assessment, or whether aesthetic repurposing alone meets the threshold. Artificial Intelligence (AI) across the spectrum of cultural production is raising serious questions about authorship, and stands to further destabilize fair use criteria. Additionally, attitudes concerning cultural appropriation and restitution of cultural property have evolved, yielding new sensitivity to the limits of fair use. The growth of artists’ estates and artist-endowed foundations has led to greater control over IP after an artist’s passing, extending an artist’s involvement over the uses of their work.

This panel invites submissions that propose updates or revisions for a “Code 2.0.” How has our field’s understanding of fair use changed in the last decade? In what ways has it coalesced, or become more fractured? How have the stakes of fair use determinations changed? How might a revised Code address labor rights, economic rights, and the ethics of fair use differently? Do all stakeholders need the same protections? What new issues should a revised Code address?