Art and Fair Use

One of the articles we read this week was Paula Aufderheide’s report on Copyright, Permissions, and Fair Use among Visual Artists and the Academic and Museum Visual Arts Communities. Fair use is part of the United States copyright law, and can be confusing. It refers to the right to reuse copyrighted material without permission or payment. Sherrie Levine and Roy Lichtenstein are two American artists who appropriate images from other artists. Appropriation in art and art history refers to the practice of artists using pre-existing objects or images in their work with little transformation of the original. Some contemporary artists have taken this movement to the point of using images which are virtually unchanged (Sherrie Levine). While this is common practice for some artists, Aufderheide notes that up to a third of visual artists are more cautious, and avoid or abandon projects out of a fear violating copyright laws. The area in fair use that I believe causes the confusion is the issue of transformation. Often, if a copyright infringement case goes to court, a judge will use the amount of transformation from the original to determine if there was infringement. This begs the question of, how much transformation is required? Most likely it would be decided on a case by case basis, which adds to the probable desertion of projects.

For art historians, fair use applies to analytic writing, and enables scholars to quote, excerpt, or reproduce copyrighted works, according to the College Art Associations Code of Best Practices. However, if we plan to publish a book and include images to support our analysis, then we will be required to pay a licensing fee for permission to use the image(s). Depending on the artist, these fees can be prohibitive. This may cause art historians to eschew contemporary art all together in order to avoid the expense of licensing fees, resulting in a loss of scholarship. For example, any work done before 1923 falls under fair use, and those images are available for use without the financial concern of licensing fees. Another area where art historians can run into difficulty is if the copyright holder wants to stop the publication of an unwelcome focus on the artist, and will use copyright law to squash the project, again, resulting in a loss of scholarship. Curators must also consider copyright issues when planning an exhibition. They may be forced to discard a potential exhibition if the costs are too high. This is a practical concern which results in the loss of exposure to certain artists, as well as a loss for the public.

I have always found the work of Roy Lichtenstein an interesting example of free use. Lichtenstein used images from popular culture, mainly Romance and War comic books of the 1960s. The artists whose images he appropriated were not well paid, and had work-for-hire contracts, meaning they did not own the creative work they did. In interviews, Lichtenstein would sometimes speak positively about the work he had appropriated, but in others, he spoke disparagingly. He said he was turning the “low art” of comic books into “high art.” Essentially, he equated the creative work of other artists with Duchamp’s urinal. Comic book artists were insulted, and resentful of how much money Lichtenstein made on his paintings. While Lichtenstein”s changes were subtle, such as changing the scale, the colors, and tweaks to the composition, these changes did add up to a transformation of the work.

In class, we began working with Omeka. I had trouble logging into my c-panel, even though I had saved my username and password. I wound up sending a request for a new password. Uploading an item was also problematic, as the image I uploaded only appeared as a thumbnail, and not the actual image itself. I had to change the settings, which I did, but it still didn’t work. Other users had the same issue. We had to add a code in settings, and then it worked. Once I get my password reset, I will try to change the theme.

It is frustrating when technology doesn’t work they way it is supposed to. When it doesn’t, without the aid of someone more knowledgeable on the subject than myself, it becomes time-consuming to find out how to fix it. I would like the Omeka platform to be more intuitive. Why, if we’re already signed into Omeka, do we then have to sign into c-panel? Shouldn’t it recognize us? I’m sure someone with more technological knowledge could easily explain why it doesn’t. To me, it seems illogical. I’m sure the more the I use Omeka, the more comfortable I will get with it, and the easier it will become. I didn’t have the opportunity to add the theme I wanted because of the c-panel issue, but we were shown the process, and it appeared complicated, with multiple decision points. Unfortunately, multiple decision points for a beginner like me translates into multiple opportunities for mistakes.

That said, there are two aspects of Omeka that stand out for me. The first, is the possibility of collaboration, and the second is the exhibit builder. If an art historian becomes a faculty member at a college or university, Omeka opens up a variety of ways art history students could work together on projects, or create their own exhibition. An art historian who works in a museum or historical society could easily collaborate on projects, and the ability to design an exhibition in Omeka would prove quite useful. Curators could also use Omeka to build online exhibits which could offer even more information about an existing exhibition. Or, they could create an online exhibition which would supplement or enhance currently existing physical exhibits. I wonder if Omeka could be used to create an archive? This would be an advantageous way to organize research data, especially for a larger project like a dissertation. After the dissertation is published, you could make your archive public. All in all, I appreciate the possibilities of Omeka, and will continue to work with the program in the hopes of becoming more adept at using it.


Patricia Aufderheide, et al. Copyright, Permissions, and Fair Use among Visual Artists and the Academic and Museum Visual Arts Communities: An Issues Report(College Art Association, 2014).

Code of Best Practices in Fair Use in the Visual Arts (College Art Association, 2015).


  1. Hey Annie,
    Thanks so much for your thoughtful comments! I agree with you- when technology doesn’t work the way that we want it to, it is often times extremely frustrating. That is one of the reasons that I wanted to take this class; being able to learn these tools in a group setting with an experienced instructor (thanks JJ!) is a much better way to engage with new tools than just on your own.
    One of the areas I wanted to expand upon from your post was the concept of fair use for art historians who are thinking about scholarly publishing. This is an extremely interesting topic to me, especially in regards to digital publishing. Copyright and permissions change across publication platforms and that is something that we need to be aware of as more and more journals and scholarly art history publications are becoming born digital publications. It is great that many museum repositories- like the Met, the Getty, etc.- are making their repositories Open Access for academics. This is a trend that I hope continues and something that we as graduate students should advocate for and be involved in (just ask any SILS student!)

  2. Hi Annie,
    Thanks for your post! Your comment about what is considered transformation is one that frequently rattles around in my brain. I think bringing up Roy Lichtenstein was great, particularly when compared with Duchamp. I’m sure there are “art toilets” that have been designed with great care (Maurizio Cattelan and his golden toilet comes to mind, speaking of which did you see that it was stolen!?), but clearly Duchamp’s urinal wasn’t something the creator was interested in pursuing as copyright infringement. I could see how the comic book artists would be angry with the appropriation of their images… I wonder if Lichtenstein would be able to get away with it in today’s age of superheroes and Marvel and DC everywhere.
    Your point about curators and fair use reminded me of the Ansel Adams show a couple years ago at the NCMA. Even though obviously the show was sponsored or taken from the Ansel Adam’s gallery and they had I think about 25 photographs, the communications team was only allowed to use two images (one of which wasn’t even in the exhibit!) I think it’s fascinating that Adams’ heirs or whoever holds the copyright would be that stringent, to not even let advertisements for his show use his work.
    Per your technology comment that multiple decision points can lead to multiple mistakes, I think that is a great point. So much of technology seems like a Hansel and Gretel trail where you have to leave yourself breadcrumbs to determine where you went wrong and try to fix it.

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