“You Be The Judge”: An Analysis of the College Art Association’s Code of Best Practices in Fair Use for the Visual Arts

Abstract

This Note assesses the workability of the College Art Association’s Code of Best Practices in Fair Use for the Visual Arts, with a focus on the principle and attendant considerations for Making Art. The Note first looks at existing doctrine of fair use as it has developed over the last 40 years, before turning to the CAA’s Code of Best Practices, contextualizing the project within the history of fair use statements and attempting to summarize relevant objections and defenses to such efforts. Finally, the Note evaluates the Code and presents findings from interviews with artists. Ultimately, the Note suggests that the Code of Best Practices for Making Art is problematic for copyright owners and users, offering a hybrid of descriptive and aspirational recommendations rather than tools for complying with existing law.