What happens when an artist incorporates third-party material into their work? What precautions should artists, dealers, galleries or museums take when creating, managing or selling such works? The seminar, Deal or No Dealing: Copyright and Fair Dealing/Fair Use in the Visual Arts, jointly hosted by the Institute of Art and Law and Howard Kennedy LLP on 25 September 2024, explored these and other important questions surrounding the use of third-party materials in artistic creation. The event focused on the differences and similarities between the US ‘fair use’ doctrine and the UK’s ‘fair dealing’ system. It brought together artists, cultural institutions, commercial galleries, private legal practices and members of the judiciary, fostering a dynamic forum for discussion.

In his interview with Jon Sharples, Senior Associate at Howard Kennedy LLP, contemporary conceptual artist Andy Holden shared his unique perspective on incorporating third-party materials into his work (image below). For instance, in Laws of Motion in a Cartoon Landscape (partly shown during the seminar), a cartoon version of Holden explains cartoon-world physics – such as “Any body suspended in space will remain in space until aware of its situation” –  while Looney Tunes clips illustrate these principles. In another work, Hermione: Full of Days/Kingdom of the Sick, he created an exhibition of 30 paintings of Hermione Burton, which he had discovered in a charity shop. Holden approaches the use of third-party materials from a moral standpoint, ensuring that his work transforms the original content or presents it in a completely new context. He aims to avoid any misrepresentation that might lead viewers to think the third-party works are his own. Reflecting on his career, Holden acknowledged that, early on, he was less aware of the potential legal issues surrounding his practices. However, he has since had varied experiences with rightsholders – some denied him permission to use their work, while others were enthusiastic or willing to collaborate.

The seminar’s keynote speech, delivered by Rt Hon Lord Justice Richard Arnold, Judge of the Court of Appeal of England and Wales, focused on comparing copyright protections in the US and UK, particularly the fair use exception in the US and the fair dealing exception in the UK. Lord Justice Arnold drew on his experience adjudicating two notable cases, under fair use and fair dealing respectively: in Sony/ATV Music Publishing LLC & Anor v. WPMC Ltd & Anor [2015] EWHC 1853 (Ch), the defendants cited the fair use doctrine to justify the use of recordings of Beatles’ performances in a documentary. In England and Wales Cricket Board Ltd & Anor v. Tixdaq Ltd & Anor [2016] EWHC 575 (Ch), he addressed issues surrounding an app that featured short cricket match clips without consent from the rightsholder. In comparing these cases, Lord Justice Arnold highlighted the key distinction between the two jurisdictions: under UK law, the work must first fall within the specific exceptions under the Copyright, Designs and Patents Act 1988; only then is the fairness of the use addressed. In contrast, US law does not require such a threshold before evaluating whether fair use might apply. Despite this difference –  one system being rules-based and the other standard-based – he concluded that in practice, their application is often more similar than it appears and the final outcomes frequently align.

The first panel, moderated by Alexander Herman, Director of the Institute of Art and Law, focused on the UK’s fair dealing exception, addressing its complexities and specific aspects. Anthony Misquitta, partner at Keystone Law Ltd and General Counsel for the V&A, discussed the challenges museums face when managing copyright material, for example in organising exhibitions or planning digitisation projects. Museums and galleries can sometimes benefit from the flexibility and ambiguity of the exceptions, but must tread carefully when deciding whether they can rely on them. Professors Emily Hudson (The Queen’s College, University of Oxford) and Joanna Gibson (Herchel Smith Professor of IP Law, Queen Mary University of London) focused on the caricature, parody and pastiche exemption. This issue was central in the recent case of Shazam Productions Ltd v. Only Fools The Dining Experience Ltd & Ors (Rev1) [2022] EWHC 1379 (IPEC), where the claimant sued a dining quiz experience that borrowed characters and themes from the well-known British 1980s TV show Only Fools and Horses. In this case the court provided a definition of pastiche, which includes two key elements:

(a) the work imitates the style of another or is an assemblage of pre-existing works,

(b) the product is noticeably different from the original work.

This characterisation highlights a crucial feature of pastiche (as well as caricature and parody). Unlike plagiarism, which deliberately conceals the reference to the previous works, these exceptions protect works where an artwork openly draws from the reference to the previous work showing the artist’s engagement with it. Ultimately, as highlighted at the conclusion of the panel, the question on what scope a copyright exception should have depends on what type of artworks we wish to protect. The image below shows Emily Hudson and Alexander Herman during the discussion that took place.

The second panel, moderated by Jon Sharples, focused on key aspects of the fair use exemption in US copyright law. Beatrice Kelly, legal advisor at White Cube, began by outlining the four key factors in assessing fair use:

• the purpose and character of the use;
• the nature of copyrighted work;
• the amount and substantiality of the portion used; and
• the effect on the market.

While all these factors are relevant, predicting which ones will carry the most weight in a given case can be challenging. For instance, in the high-profile Supreme Court case Andy Warhol Foundation for the Visual Arts v. Lynn Goldsmith, US Supreme Court 21-869 (18 May 2023) – covered on the blog shortly after its publication – the Supreme Court focused mainly on the first and fourth factors, resulting in a relatively narrow application of fair use. Following these initial remarks, Megan Noh, partner at Pryor Cashman LLP, and Daniel McLean, consultant at Howard Kennedy, joined the conversation to explore how fair use affects relationships between artists, collectors, galleries and other stakeholders. They noted that artists in the US often remain undeterred by the limitations of fair use, tending to adopt a less risk-averse approach to their creative processes. Some perhaps even anticipate invoking the fair use defence if legal issues arise, as exemplified by Richard Prince, whose work has led to multiple legal battles over copyright infringement.

On a concluding note, Jon Sharples mentioned the upcoming exhibition Wayne Thiebaud: Art Comes from Art opening in March 2025 at the Fine Arts Museum of San Francisco, which offers a timely invitation to reflect on the themes discussed in the seminar. Wayne Thiebaud, a self-described “thief”, openly appropriated and reinterpreted both classical and contemporary works, guided by his belief that “art comes from art and nothing else”. This exhibition promises to provide a valuable opportunity to engage with the ongoing dialogue around appropriation, fair use and fair dealing in the visual arts.