What is Considered Fair Use Under the Visual Artists Rights Act?

The Visual Artists Rights Act protects the visual works of artists. By providing additional rights to creators long after their work has been sold. Or otherwise distributed to another party. The protections of the Visual Artists Rights Act include protections of moral rights. Should one alter the visual works. Or otherwise change after transferring ownership of the work to another party. However, fair use under the Visual Artists Rights Act allows for certain exemptions or limitations on exclusive rights provided to artists. As a filmmaker, it’s important to understand fair use under the Visual Artists Rights Act. And what it means for the creative works you may use over the course of production.

What is the Visual Artists Rights Act?

The Visual Artists Rights Act is a form of legislation that was announced in 1990. To provide additional protections to the creators of visual works above.

And beyond those provided under traditional Copyright. Extending well-beyond the point of the selling the work. Or otherwise transferring ownership to a third party.

Moral Rights

Under the Visual Artists Rights Act, visual works such as photos, sculptures, paintings and drawings receive certain moral rights. Which require attribution and integrity of the original work regardless of any transfer of ownership.

This means that the original work of an artist must maintain that same integrity. And may not be modified, altered, or otherwise distorted without the artist’s consent. If such works are altered or otherwise modified?

Such as in the case of the work under ownership of a new party that paints over the work. Cuts the work into pieces. Or performs some other mutilation of the work.

The artist has the right to have their name eliminated from the work. So as not to include any further attribution or claim to authorship. 

Ownership Transfer

The purpose of the Visual Artists Right Act is to provide moral protections for an artists’ work. Unlike Copyright protection which provides certain rights that transfer ownership with the sale of the work.

The Visual Artists Rights Act and moral protections provided do not transfer ownership. The original artist maintains ownership of the moral rights and protections, forever.

However, just like there are certain protections under Copyright law. In regards to Fair Use, Fair Use under the Visual Artists Rights Act may also come up.

What is Fair Use Under the Visual Artists Rights Act?

So what is considered fair use under the Visual Artists Rights Act? And how does Congress define fair use in this circumstance? According to research, there are 107 fair use limitations which reduce or otherwise exempt the exclusive rights provided by VARA.

Thus, just like a filmmaker may be able to employ the protection or defense of “Fair Use”. Under United States Copyright Law for certain uses of copyrighted works in their filmmaking.

They may also be able to employ a similar defense protection when it comes to the use of visual works. That are technically under protection of the Visual Artists Rights Act.

Permissible Purposes

Fair Use under the Visual Artists Rights Act includes a variety of permissible purposes to use, reproduce, or otherwise alter an artist’s work.

According to legislation, VARA rights are subject to the fair use limitations and exemptions that are afforded to copyrighted work. Therefore, as a filmmaker, if you’re going to use copyrighted works that are also protected by VARA in your filmmaking?

Consider the application of fair use rights which can apply in the following circumstances:

• When using a work as criticism, comment, news reporting. Or for teaching, scholarship or research.
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• When the use of the work constitutes the four factors of fair use under U.S. Copyright Law.
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• When the use of the work is substantially transformative.

The Four Fair Use Factors

Just like in Copyright Law, Fair Use under the Visual Artists Rights Act applies to works that are used in a transformative manner. And for which they meet the fair use balancing test. Keep in mind that fair use is not a protection.

But rather a defense that is provided to filmmakers and others who use visual arts or other creative works. The defense of fair use comes up only after an accusation, in the form of a lawsuit, is filed against the user of the copyrighted or otherwise protected work.

To determine whether you’ve used visual works or any copyrighted material under the defense of fair use.

A judge will perform the fair use factor test which basically tests four points as follows:

1. The purpose and character of the use.
2. The nature of the Copyrighted work.
3. The amount or substantiality of the portion used.
4. The effect of the use on the potential market for or the value of the work.

What does all of this mean?

Basically, if a judge is forced to determine a case on VARA rights under fair use? They are going to look at the above four items. First, what was the purpose and character of the use of the copyrighted work?

Did they use the work in a means that one could consider transformative? You cannot just reproduce a work! But if you use a visual work in a way that is completely different and transformative from its original purpose? You’re on the right track.

Registration

Next, the judge will look at whether the nature of the copyright work being used could qualify for fair use defense. This means the work must be Copyrighted and that it must have a registered owner.

The same is true for visual works that would employ fair use protection. If the copyright is not registered, there is no defense.

Amount and Substantiality

Third, the judge will look at the amount and substantiality of the portion of the copyrighted or otherwise protected work that was used. Did the filmmaker use only the amount necessary to get their point across?

You cannot use excessive amounts of another creator’s work without permission. You should only use what is absolutely necessary for the purpose of transformative use that you’re incorporating.

In Summation

Finally, how does the use of the work affect the potential market or value of the work? This is a complicated area of concern. But basically it means that if the filmmaker could have purchased a copyright license to the work they should have done so.

One should only use works under fair use in the event that the purpose is for one of the areas of concern that fair use protects. Such as in research, scholarship, or to teach. 

So, what is considered Fair Use under the Visual Artists Rights Act? Basically, a filmmaker can use any visual works under protection by Copyright law via fair use. Provided they meet the standard four factor fair use equation.