Fair Use Policy

OVERVIEW

In an effort to reduce barriers to image use in art scholarship, the Robert Rauschenberg Foundation (the “Foundation”) takes the following stance on fair use, licensing, and use of copyright materials:

  1. Recognizes and supports reproductions of Rauschenberg artworks, for which the Foundation owns the copyright, based on the doctrine of fair use.
  2. Utilizes fair use in the Foundation’s scholarly initiatives when reproducing Rauschenberg-related materials, for which the Foundation does not own the copyright.
  3. Provides grant(s) for royalty–free image use to museum and educational partners permitting reproduction of copyrighted Rauschenberg artworks in select situations that (a) do not qualify as fair use or (b) the partner is not comfortable publishing as fair use (referred to as the “License Agreement”).

 

A. FAIR USE OF RAUSCHENBERG ARTWORK REPRODUCTIONS

The Foundation recognizes and supports the use of images of Rauschenberg artworks, for which the Foundation owns the copyright, under the doctrine of fair use with the goal of fostering scholarship, disseminating knowledge, and enhancing educational initiatives. Possible uses include:

  1. Analytical, interpretive, and/or creative writings/works
  2. Online (digitized) collections created for public scholarship
  3. Teaching including online coursework and study guides
  4. Articles and editorials in print and digital newspapers
  5. Transformative use in artworks
  6. Personal or non-profit social media uses

Publishing Rauschenberg artwork under fair use does not require permission from or a license agreement with the Foundation: however, all artworks must be properly cited in such manner that a reasonable viewer may easily associate it with the item, ideally on the same page or monitor screen. In order to ensure accuracy in color reproductions and citations, publishers are requested to contact the Foundation to obtain free authorized reproductions and citations. See Contact Us information below. Any use shall not suggest that the Foundation is sponsoring or is formally affiliated with the publisher.

This fair use policy does not include advertising, promotional, and commercial uses of Rauschenberg's artwork (unless previously granted by the Rauschenberg Foundation). To request such uses, please contact VAGA at Artists Rights Society at: info@arsny.com.

 

B. THE FOUNDATION'S POLICY ON USE OF COPYRIGHTED IMAGES

As a copyright holder, the Foundation supports fair use of Rauschenberg artwork images. Similarly, as a creator of educational content, the Foundation exercises the right to responsibly make fair use of works for which the Foundation does not own the copyright. If you have any questions or comments on our use of images or believe an image has been reproduced in violation of copyright, please contact us at fairuse@rauschenbergfoundation.org.

 

C. GRANT FOR IMAGE USE BY EDUCATIONAL INSTITUTIONS AND MUSEUMS

For partners that are uncomfortable publishing under the doctrine of fair use or for select image use that does not qualify for fair use, the Foundation is granting License Agreements for image use by educational institutions and museums on a case-by-case basis. This License Agreement is designed to acknowledge and support the fair use of copyrighted Rauschenberg artworks as well as encourage additional usage that may not qualify under fair use. Such uses include:

  1. Use covered by fair use, to:
    • Encourage the long-term and widespread use/reproduction of Rauschenberg artworks without repeated permission requests
    • Reduce the need for fair use analysis and decision-making as related to the non-commercial usage of reproductions of Rauschenberg artworks
    • Provide usage assurance for institutions that are not comfortable publishing images of Rauschenberg artworks under fair use
  2. Additional royalty-free use of Rauschenberg artworks in the License Agreement, subject to the Foundation’s approval, may include:
    • Promotional uses such as marketing and advertisements
    • Conversion of pre-existing print scholarship to digital platforms

Museum and educational institutions are encouraged to contact the Foundation to learn more about the License Agreement. See Contact Us information below to apply.

 

RESOURCES

The Foundation recognizes that several guidelines for best practices in fair use have been published. A comprehensive list of guidelines and best practices can be found on Center for Media and Social Impact website.

 

CONTACT US

For authorized artwork images and citations as well as questions about the License Agreement, please contact Francine Snyder, Director of Archives, Robert Rauschenberg Foundation at fairuse@rauschenbergfoundation.org. For all image requests that are not covered by fair use or the License Agreement, please contact VAGA at Artists Rights Society: info@arsny.com.

 

 

June 17, 2022

The Robert Rauschenberg Foundation has filed an amicus brief in connection with The Andy Warhol Foundation v. Goldsmith, an important U.S Supreme Court case appealing the Second Circuit Court of Appeals’ decision related to copyright’s fair use doctrine. The Foundation’s brief was joined by the Roy Lichtenstein Foundation, Joan Mitchell Foundation, Brooklyn Museum and College Arts Association.

The brief argues that artists have long built on the foundation of prior artists’ works, as evidenced by myriad examples of transformative works that convey new expression, meaning, or message. The Second Circuit erroneously limited its analysis to a merely visual “side-by-side” visual comparison, holding that if one can still identify the earlier work as used to create a subsequent work, the later work cannot be transformative. The Second Circuit thereby called into question entire bodies of contemporary work, while at the same time creating doubt on the part both of established and emerging artists as to the scope of permitted usages of existing imagery. The Second Circuit thereby frustrated the First Amendment principles that underlie fair use.  We therefore urged the Supreme Court to reaffirm its existing approach, while also providing needed guidance to the lower courts.

A copy of the brief may be downloaded here.

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March 3, 2020

The Robert Rauschenberg Foundation has filed an amicus brief in connection with Goldsmith v. The Andy Warhol Foundation, an important Second Circuit case about copyright’s fair-use doctrine.
 
The Foundation submitted the amicus brief to propose a framework for understanding fair use that would maintain the proper balance between free expression and the protection of an artist’s creative work, and to provide a roadmap for how courts should determine whether a secondary work is “transformative” of the first. The Foundation argues that courts should undertake a two-step inquiry:  First, the court should first compare the two works to determine whether transformation is readily apparent even to the untrained eye. Second, if transformation is not readily apparent, courts should consider additional evidence—from, for example, art historians, curators, members of the relevant audience, or the creator of the secondary work, among other sources— to determine whether the use is transformative despite physical similarities between the two works. The Foundation’s brief displays a number of examples (including Manet’s Olympia, and Charles Lutz’s series Warhol Denied) to illustrate the many ways in which a secondary work of art can transform the meaning and message of a primary work despite physical similarities between the two.
 
A copy of the brief may be downloaded here.

“This case presents important questions about the nature and scope of artists’ creative freedom, including their ability to build innovatively on the works of other artists.  The Robert Rauschenberg Foundation is the steward of my father’s own legacy of transformative imagery.  We therefore appear in this case to urge the Court of Appeals to maintain a robust Fair Use Doctrine as a valuable safeguard on artists’ rights to create expansively, as Bob did in his own work,” said Christopher Rauschenberg, the Foundation’s President.

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January 13, 2020


The Robert Rauschenberg Foundation filed a friend of the court brief in the Supreme Court of the United States, appearing jointly with The Andy Warhol Foundation for the Visual Arts. This court filing complements the Foundation’s affirmative policy on fair use, which aims to reduce barriers to image use and thereby foster scholarship, disseminate knowledge and enhance educational initiatives. 


While the case, entitled Google v. Oracle, arises in the specific context of software development, it could, if not narrowly decided, have an impact on “fair use” in the arts nationwide.  The Foundations’ brief thus explains how the use and re-use by one artist of other creative works have long been essential parts of artistic expression, particularly in the visual, literary, and musical arts. The brief highlights how fair use by artists often implicates the protections of the First Amendment of the U.S. Constitution.  Most importantly, the Rauschenberg and Warhol Foundations urge the Supreme Court to proceed with caution on whether and how it decides the fair use questions. As the filing goes on to argue, the Court should be mindful that questions involving the claimed fair use by one entity of software interfaces owned by another (the specific technical setting of the Google v. Oracle case) involve distinctive legal issues that do not necessarily or easily apply to the creative arts.


The amicus brief was filed in support of neither party and the Foundation was represented by the law firm Schnapper-Casteras PLLC.

 

 

The Rauschenberg Foundation makes a Good Faith Effort to properly credit all copyright holders. If you have any more information about any materials on our website or if you are the copyright owner and believe our website has not properly attributed your work to you, please let us know. Email fairuse@rauschenbergfoundation.org with your contact information and a link to the relevant content.