The Intellectual Property Powder Keg: Fair Use and Contemporary Art Museums

Employing fair use at a contemporary art museum can feel like navigating a minefield where one lives in fear not of explosions, but cease and desist letters from angry rights holders. Despite the dearth of public domain materials, there is no need for a proverbial metal detector when publishing in-copyright images, just a healthy understanding of the four factors. At the Museum of Contemporary Art Chicago, where I am the Rights and Images Manager, we utilize fair use in three public-facing ways:Online Collection—This online display of our 3,000-piece permanent collection is a unique record of the MCA’s collecting history, and includes exhibition and publishing material related to each object. It is a significant educational and scholarly resource that presents the MCA’s holdings to a broad online audience. Images are non-downloadable and fully attributed with tombstone and credit information.Exhibition History—Installation photography of the MCA’s past exhibitions are also hosted on the museum’s website. The images visually describe the MCA’s exhibition history dating from 1967 to the present and are low resolution, captioned, and non-downloadable. The images focus on no one object, rather they depict broad installation views for greater understanding of the exhibitions.MCA Blog: MCA DNA—The MCA’s blog is another online educational tool for visitors, which features entries by MCA staff, visiting artists, and scholars. Images on the blog help guide readers through the text. They pose no commercial threat to the objects they depict and are low resolution.Assessing fair use is challenging in the contemporary arena because one must consider relationships with living artists and contractual obligations when determining whether a use falls within the boundaries of the law. Thankfully, understanding United States Code carries considerably fewer risks than bomb detection—even when dealing with today’s most incendiary art. As institutional fair use standards continue to be tested (and uncontested), museums should begin to feel comfortable publishing past didactic materials and online collections. Today a blog post, tomorrow a banner, one day, an exhibition catalogue.Fig. 1: Home page for the MCA’s collection site. Fig. 2: Exhibition page for the MCA’s 1967 show Fantastic Drawings in Chicago Collections. Fig. 3: MCA DNA blog post about one of the MCA’s earliest commissioned pieces, Concrete Traffic (1970) by Wolf Vostell.Bonnie RosenbergMuseum of Contemporary Art, Chicago