Fair Use of Art In Early Education
Respect for Copyright is a Puzzling, but Valuable, Childhood Lesson
by
Cindy Hill, for Fine Art Registry™
An early-childhood educator recently sent me a question: "It is hard to find good quality educational materials for young children involving classic art. In the past I have printed images of paintings by van Gogh, Picasso, and the art of ancient Greece or Egypt, from museum websites or poster company websites and, gluing them to poster board or foam board, turned them into puzzles for my young students. Is using someone's artwork in this way legally okay? And what if I were to sell my puzzles to other parents or educators?"
The short answer is that reasonable minds ought to be able to work out a legal, reasonably-priced means by which early childhood educators can get great works of art in front of young minds; however, even in such a noble endeavor, copyrights must be respected. In fact, the earlier that the message can be conveyed to young students that they have copyrights on all their creative works – art, written works, photographs – the better, as it can only help to instill a greater sense of ownership and pride in a budding artist's creations.
I've recently been horrified to look at some poetry, writing and art contests for children and teens. I discovered that many of them demand 'all rights' to all of submissions as a condition of entry or publication. I can understand how this would make sense from the contest's or publications' perspective – they can publish the winners online or in print, make posters or calendars with images from the submissions, all without executing individual contracts with the entrants. I hope that parents and educators in all the creative arts help kids to understand what those rights involve so they can begin to make informed decisions. That kind of understanding starts with respect for the copyrights of others, whether that's conveyed through specific discussion of copyright surrounding any given work, or whether it's simply demonstrated by example, starting with those home-made pre-school art puzzles.
Two Levels of Copyright Concern
Copyright issues are raised at two levels when downloading images of art and turning those images into puzzles. Both levels of concern might be adequately addressed by the U.S. Copyright statute’s Fair Use exemption for educational use when they are used by an educator in the classroom, but this statutory exemption would not extend to the sale of the items.
The first level of copyright question is the image itself. Is the artwork which the teacher wishes to utilize something which has passed into the 'public domain'? It's a pretty safe bet that creative images from the 'ancient world' of Greece, Rome or Egypt are not in the realm of copyright statutes in and of themselves. But Vermeer was a lot more recent than Ancient Greece, and Picasso and Míro more recent than that. Just because a work is ‘famous’ does not mean that it is 'classic' as in 'old,' and it's indeed likely that any work produced within the past 100, or perhaps even 150 years, may well be covered by a copyright protection which remains in the hands of the artist's estate.
But if the art image is copyright-protected, Section 107 of the U.S. Copyright statute does provide an exception to an artist's exclusive copyrights for 'fair use.' The Fair Use provision states that use of a copyrighted work or image "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."
The statutory factors used to determine whether any particular use of a work is 'fair use' 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 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 or value of the copyrighted work."
While educators often refer to their instructive use of copyrighted works as 'fair use', there is also another statutory provision separately referred to as the 'exemption of certain performances and displays.' This provision, Section 110 of the U.S. Copyright statute, most specifically pertains to plays and films, i.e. 'performances,' but it also pertains to 'displays' of other visual works of art. Under Section 110, the "display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction..." is not an infringement of copyright.
However, the statute is clear that this exemption does NOT apply to copies of a work which were not lawfully made, which raises the second point regarding copyright issues in making art puzzles for preschoolers.
Legal Image Sources
This second level of concern involves the copyrights attached to the photograph or digital image of the original artwork from which the teacher copied these images. Photos of a painting on a museum website implicate not only the copyright of the original artist who created the painting, but also the copyright of the photographer who took the photo of the painting, as well as the museum’s interest in its website design. Museums do indeed have a market and economic value attached to even their 'classic' paintings and antiquities – people pay to come to the museum to see the works, as well as to purchase museum-licensed images of those works. And poster vendors have an even more obvious commercial interest in the product they are selling, and downloading the image instead of buying the poster interferes with the potential market of the vendor.
These commercial interests mean that the use of downloaded works from these sites may well not be protected by the Fair Use exemption. Downloading and printing images of artwork off the web without permission of the site owner is an unlawful infringement of the site owner's copyright – and so the use would not be exempted under Section 100 either. To avoid these issues, be sure to either obtain permission from the source to use the images, or properly purchase the item – poster, note card, etc. – to be displayed in the classroom. The good news is that there are many quite inexpensive art-poster sources on the market, as well as companies and museums willing to donate materials suitable for children's art education use (outdated exhibit or auction catalogues, off-color seconds prints), and arts grants available through state and local agencies and corporations to fund such purchases.
Another option, again with permission, would be for an educator to photograph an artwork herself, and use her own photo. Some art museums, galleries, and private owners allow photos, others do not, so be sure to ask. Going on a field trip to a museum or gallery, or having a local artist visit the classroom, gives educators an opportunity to demonstrate proper respect for copyright and artistic value by allowing the students see and hear the educator asking for permission to photograph the work to be used in the classroom, and thanking the artist or art owner for allowing the classroom to share in the artwork this way. This exercise could be repeated in the classroom by being sure to ask the students for permission to display their own artwork for others to be able to experience, or asking for the student’s permission before photocopying their works for a classroom portfolio.
Commercial Uses are Not 'Fair Use'
Turning the images into a puzzle also raises a moral rights question where the work is by a living artist. "Fair Use" exemptions only extend to copyright matters; the alteration or mutation of a work of a living artist is protected by moral rights laws, not copyright laws. When using the works of a living artist, be sure to contact him or her first before turning their works into other objects, even if the display of the work would otherwise be protected by Fair Use exemptions. I can't imagine too many living artists who would be offended by the suggestion of such a use of their work, and many might even donate additional prints or materials to the classroom; but don’t make such a presumption without asking.
Finally, none of these exemptions would apply to the creation of puzzles or other educational materials for sale. The manufacturer of the puzzles would need to obtain license or permission to do so from the painting owner, and again either obtain copyright permission from the photographer or obtain their own photographs from which to print the puzzles. This is certainly not impossible, and a resource like Fine Art Registry™ provides the perfect forum for educators to contact living artists as well as collectors of non-copyright protected art to obtain necessary permissions.
Copyright should not stand as an impediment to the very important task of getting art into the hands and minds of young students, but proper respect for copyright in the classroom will stand as a valuable lesson throughout life for those students in regard to their own creative works.
— by Cindy Hill
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March 8, 2008
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