fair use in Weinmayr 2019


those
that had been sold from being displayed publicly in the
future.[35](ch11.xhtml#footnote-491)

However Prince’s eventual appeal turned the verdict around. A second circuit
court decided that twenty-five of his thirty paintings fell under the fair use
rule. The legal concept of fair use allows for copyright exceptions in order
to balance the interests of exclusive right holders with the interests of
users and the public ‘for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use), scholarship, or
research’.[36](ch11.xhtml#footnote-490) One requirement to justify fair use is
that the new work should be transformative, understood as presenting a new
expression, meaning or message. The appeal’s court considered Prince’s
appropriation as sufficiently transformative because a ‘reasonable
observer’[37](ch11.xhtml#f


remaining five paintings, and their
infringement claim was returned to the district court meaning that no ruling
had been issued. This pragmatic settlement can be interpreted as a missed
opportunity for further clarification in the interpretation of fair use. No
details about the settlement have been disclosed.[49](ch11.xhtml#footnote-477)

Richard Prince presented himself in his court deposition as an artist, who
‘do[es]n’t really have a message,’ and was not ‘trying to create anything with
a ne


e advice on intellectual property —
which was until recently headlined ‘Own It’.[67](ch11.xhtml#footnote-459)
Here, institutional policies privilege the privatisation and propertisation of
creative student work over the concept of sharing and fair use.

There is evidence that this line of thought creates a self-inflicted
impediment for cultural workers inside and outside art colleges. The College
Art Association, a US-based organization of about fourteen thousand artists,
arts professionals, students and scholars released a report in 2015 on the
state of fair use in the visual arts.[68](ch11.xhtml#footnote-458) The survey
reveals that ‘visual arts communities of practice share a great deal of
confusion about and misunderstanding of the nature of copyright law and the
availability of fair use. […] Formal education on copyright, not least at art
colleges, appears to increase tendencies to overestimate risk and underuse
fair use.’ As a result, the report states, the work of art students ‘is
constrained and censored, most powerfully by


against the grain of [the] market-driven arts
economy, their one recourse for controlling us is copyright.’ Another said:
‘In many cases I have encountered artists’ estates and sometimes artists who
refuse rights to publish (even when clearly fair use) unless they like the
interpretation in the text. This is censorship and very deleterious to
scholarship and a free public discourse on
images.’[71](ch11.xhtml#footnote-455) One scholar declared that copyright
questions overshadowed his entire work


piracy-lectures/>

Andersson, Jonas (2009) ‘For the Good of the Net: The Pirate Bay as a
Strategic Sovereign’, Culture Machine 10, 64–108.

Aufderheide, Patricia, Peter Jaszi, Bryan Bello and Tijana Milosevic (2014)
Copyright, Permissions, and Fair Use Among Visual Artists and the Academic and
Museum Visual Arts Communities: An Issues Report (New York: College Art
Association).

Barron, Anne (1998) ‘No Other Law? Author–ity, Property and Aboriginal Art’,
in Lionel Bently and Spyros Maniatis (


gement against Swedish author Fredrik Colting
for 60 Years Later Coming Through the Rye, a sequel to Salinger’s book. See
note 31.

[36](ch11.xhtml#footnote-490-backlink) ’In determining whether the use made of
a work in any particular case is a fair use the factors to be considered shall
include — (1) the purpose and character of the use, including whether such use
is of a commercial nature or is for nonprofit educational purposes; (2) the
nature of the copyrighted work; (3) the amount and subst


Wallace questions the majority’s insistence on analyzing
only the visual similarities and differences between Cariou’s and Prince’s art
works, “Unlike the majority, I would allow the district court to consider
Prince’s statements reviewing fair use … I see no reason to discount Prince’s
statements as the majority does.” In fact, Judge Wallace remarks that he views
Prince’s statements as “relevant to the transformativeness analysis.” Judge
Wallace does not believe that a simple visua


, /freelance-and-business-advice/intellectual-property-advice>

[68](ch11.xhtml#footnote-458-backlink) Patricia Aufderheide, Peter Jaszi,
Bryan Bello, and Tijana Milosevic, Copyright, Permissions, and Fair Use Among
Visual Artists and the Academic and Museum Visual Arts Communities: An Issues
Report (New York: College Art Association, 2014).

[69](ch11.xhtml#footnote-457-backlink) Ibid., p. 5.

[70](ch11.xhtml#footnote-456-backlink) Sixty-six percent of a


fair use in Sollfrank 2018


s, which have not been considered in current legal
settings. And as the 20 years of Ubu’s existence demonstrate, the practice may
be experimental and precarious, but with growing cultural relevance and
reputation it is also gaining in stability.

_Fair Use and Public Interest_

At all public appearances and public presentations Goldsmith and his
supporters emphasize the educational character of the project and its non-
commercial orientation.9 Such a characterization is clearly intended to take
the win


nd the common good.

From a cultural point of view, the project unquestionably is of inestimable
value; a legal defense, however, would be a difficult undertaking. Copyright
law, in fact, has a built-in opening, the so-called copyright exceptions or
fair use regulations. They vary according to national law and cultural
traditions and allow for the use of copyrighted works under certain, defined
provisions without permission of the owner. The exceptions basically apply to
the areas of research and private


n to a third party
is also excluded.11 As Ubu is an online archive that makes all of its records
publicly accessible and, not least, also provides templates for further
copying, it exceeds the notion of a “private copy” by far. Regarding further
fair use provisions, the four factors that are considered in a decision-making
process in US copyright provisions, for instance, refer to: 1) the purpose and
character of the use, including whether such use is of a commercial nature or
is for non-profit educa


d substantiality of the portion used in relation to the
copyrighted work as a whole; and 4) the effect of the use upon the potential
market for the value of the copyrighted work (US Copyright Act, 1976, 17 USC.
§107, online, n.pag.). Applying these fair use provisions to Ubu, one might
consider that the main purposes of the archive relate to education and
research, that it is by its very nature non-commercial, and it largely does
not collide with any third party business interests as most of the materia


ral memory, while the legal situation does not
consider the value of the project as a whole and necessitates breaking it down
into all the individual items within the collection.

This very brief, when not abridged discussion of the possibilities of fair use
already demonstrates how complex it would be to apply them to Ubu. How
pointless it would be to attempt a serious legal discussion for such a
privately run archive becomes even clearer when looking at the problems public
libraries and archives have t

 

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