Home Sculptor Business How the College Art Association Bumbled Fair Use for their Conference Presenters

How the College Art Association Bumbled Fair Use for their Conference Presenters

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The virtual edition of the College Art Association’s 2021 conference has now come and gone, having concluded its four-day run of live events on February 13. Everyone involved is undoubtedly breathing a sigh of relief that the large-scale undertaking moved forward with only a modest number of technical glitches. But even though hundreds of sessions did take place successfully, others disappeared from the program before the conference began, and the conflict that led to their withdrawal suggests an organization that needs to reexamine key aspects of its mission.

One of the cancelations was a very timely session on “Copyright in the Age of Remoteness” where I was scheduled to deliver a paper. Having presented various times since first joining CAA in the 1980s, I figured I knew what would be expected. On this occasion, however, I was stopped in my tracks by a presenter agreement that required contributors to sign over extensive rights, made no reference to fair use, and put all liability risk on the speakers. A general outcry forced the CAA to undertake 11th-hour revisions, but for some of us the changes were too little, too late.

As part of a planning process that led art historian Rebecca Zorach to resign from her position as annual conference committee chair, CAA settled on a format where speakers would be responsible for recording and uploading their talks well before the actual conference. According to the instructions released in October, only the associated Q&A, scheduled in half-hour time slots, would be live, and all material would remain available online through mid-March.

A few presenters quickly began voicing their concerns about the agreement — to no avail, as Nancy Sims, a copyright librarian at University of Minnesota, subsequently recounted. Others (including this author), mired in the demands of pandemic teaching, only focused on the specifics once the fall semester was drawing to a close.

The language suggested an organization taking its cues from corporate America, rather than modeling provisions designed to protect the interests of its members. Speakers were required to warrant that they had obtained “all necessary permissions” for their visual materials, to indemnify “CAA, its licensees and its and their agents, representatives and assignees from any and all liability, claims and costs,” and to grant CAA an “unconditional perpetual, worldwide, royalty-free release” that included the right to “create derivative works of the Program and any Recording of the Program, in any and all forms or media, whether now known or as may hereafter be developed.” Nor was there any compensation on offer; substantial membership and registration fees meant that presenters were being asked to fork over both dollars and rights in order to share their work.

CAA’s organizational structure includes a robust Committee on Intellectual Property that is focused on protecting the interests of its constituencies, but it later emerged that the committee as a whole was not consulted about the agreement, and input from the co-chairs was largely ignored. While problematic on many fronts, the agreement’s most surprising aspect was its retreat from CAA’s own advocacy, articulated in its groundbreaking 2015 Code of Best Practices for Fair Use in the Visual Arts, which was designed to give artists and art historians alike the tools needed to break free from a “permissions culture” around images.

By mid-December, the groundswell of opposition included a sizeable group of university graduate program chairs and directors, whose letter cited the language about permissions, the threat to presenters’ intellectual property, and dangerous precedents for online academic exchange in general. Another letter, organized by art historian Allison Morehead via social media, was eventually endorsed by more than 200 people. Possibilities for an alternate forum were also discussed — and a site for posting links to withdrawn material and other online events was subsequently realized.

CAA initially responded with an online FAQ that made belated reference to fair use and attempted to reassure presenters that the organization would not actual exercise many of the rights they were demanding. It wasn’t until New Year’s Eve that CAA announced a revised agreement — less than a week before the January 5, 2021, upload deadline (later extended by five days). The changes were sufficient to allow the show to go on for many, but casualties included the panel where I was due to present, organized by Emily Lanza and Anne M. Young. In addition to cancelling the session, they tendered their resignations as co-chairs of the Committee on Intellectual Property.

The importance of fair use cannot be overstated in the context of an organization focused on advocacy for the visual arts while serving as a professional association for both artists and art historians. Although often not sufficiently exercised, fair use provisions in the US Copyright Act allow reproduction of copyrighted material without permission for purposes that include education as well as criticism and commentary.

In one significant venture, Suzanne Preston Blier, who served as 2016–18 CAA president, relied on fair use for her 2019 book Picasso’s Demoiselles: The Untold Origins of a Modern Masterpiece, with backing from Duke University Press. Yale University Press has incorporated explicit references to fair use in their image guidelines for scholarly art and architecture monographs. Unfortunately such reliance is far from universal, as I am well aware, having recently cleared image permissions for a forthcoming book on intersections between copyright and artistic authorship that voices strong support for fair use. Citing ways that a fair use code for documentary filmmakers has facilitated a shift away from copyright clearance for vital historical footage, law professor Brian Frye has been pushing for university presses to take a similar stance, with risks mitigated by pooled insurance. Copyright overreach by CAA against its members risks negating the impact of its own advocacy in this arena.

Under the current leadership of Meme Omogbai and Elizabeth Schlatter (executive director/CEO and president, respectively), CAA has prioritized a number of important initiatives around diversity, inclusiveness, and climate change, in the context of an organization severely challenged by the pandemic. Yet Omogbai’s references to CAA’s ongoing “digital transformation” in public conversations from October and November leave many unanswered questions about plans to shift focus away from the annual meeting to a year-round online platform.

CAA’s in-person conference has always relied on fair use and did not require speakers to sign away rights in order to present. But digital transmission does complicate matters due to the potential for wider dissemination. Given how many CAA members have been forced to make a sudden shift to remote teaching, with its attendant challenges, it is even more crucial to model best practices. Putting the burden on presenters, rather than taking a principled stand on fair use, sends exactly the wrong message.

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