Fair Use Justification for the Denver Urban Art Directory (DUAD)
Regarding Copyright law:
Title 17, chapter 1 Section 107 (from https://www.copyright.gov/title17/92chap1.html) states:
The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall 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.
Addressing each of these points to show that the DUAD satisfies Fair Use of public art works:
1 – The Auraria Library's (a non-profit academic institution) primary use of the works is educational. The DUAD provides an avenue for students to learn about public art in their area, GPS & mapping technology and appropriate copyright practices. An educational outcome is that a person providing photos to the project read and sign the submission form explaining the status of their image and the original work under copyright law. Our use is transformative in that we're building a directory of these works for better public access to the originals.
2 – The copyrighted work in the DUAD are, without doubt, creative original works and so there isn’t a strong fair use argument to be made on this point. However, another aspect of the nature of the work is that they are non-mobile pieces of public art that can only be fully experienced in their original location, thus making it difficult to replicate.
3 – Although the majority of the images hosted on the website for the DUAD will show the complete original work, they will do so at a low resolution and will therefore not substantially represent the original.
4 – The market for murals, sculptures and wall art is assumed to be mainly new commissions for the artist. Thus it is likely that this project will likely only enhance the value for the creator of the original work by adding to the artist's reputation.