Diary Schmiary

I have a love hate relationship with visual art diary’s. I understand completely why they are a useful tool for teachers when trying to grade the work of an art student. It’s kind of like showing the working with a math equation, it helps the teacher understand how the student got there, and what their thinking was.

Above is a photo of my visual diary from the second year of my advanced diploma, it’s filled to the brim with work, trimmings, theory, assignments and it looks pretty impressive. Below are the total 7 pages of visual diary I’ve used this semester.

Firstly it’s easy to point to the pandemic and schooling from home as the most obvious answer for why this has happened. Without the constant walking into class with my visual diary, I don’t have that reminder to document my work, its easy to forget you’re working in a school system and being graded when you’re attending class from your bedroom. Often on my studio desk at RMIT there would be a pile of source images printed off, work scrawled on loose paper, and test works laying all around. Towards the end of a project I would collect all these scraps up and arrange and annotate them in my diary. At home this becomes a bit more difficult, I don’t want piles of documents and scribbles laying around my room, or else my partner might think I’ve finally snapped and gone full Ted Kaczynski.

Reason number two is in front of you right now, this website. I started this blog about 6 months ago, thinking it would be a convenient way to present my work from home, and far more legible than my usual scribbling in the margins. While this is a really convenient way to catalogue thought processes and work progress, it suffers from a dilemma of quality. Putting something out on the internet for everyone to see is quite different from scribbling in your mostly private diary, I find myself being very picky about what I put up on this blog. The further this website project goes on, the more protective I become of how I present myself, and the work. I’ve went from writing and presenting in a style suited more for the school, and teachers who would mark my work, to something more representative of myself. This is a constant balancing act between the writing being informative of my work from an academic perspective, but also interesting for any interested third party to read.

It’s easy to think about a visual diary as something you do for your institution instead of for yourself. Looking back at my old diaries I can pick apart what I put in because it meant something to me, and what I did to fill space or meet a rubric. I’m filled with a weird melancholy going back through them, like that feeling you get thinking about your teenage years, imagining this tiny human not really knowing who they are or what direction they’re heading.

I’m more proud of the writing I’ve done on this site than anything I’ve put in my diaries, maybe because it’s more recent and I’m more confident in what I want to say, but also this blogging gives a feeling of honesty and transparency that is really freeing. This whole process feels more like I’m taking ownership over my identity and art practice, but also less like I’m making something just for people to browse through and say “that was cute”. Ultimately I would love to continue working with visual diaries, but with more and more of my practice moving online through blogging and streaming, I don’t really see how it fits into the equation.

Fair use? Fair Dealing? Fair Enough!

click here for an audio reading of this post!

One of the largest concerns I faced while working through this latest collage project, and really it’s a concern I’ve had whenever I’ve worked with collage. What are the moral implications of using images that I didn’t create? I didn’t make the images I cut out, and I don’t have any copyright to them, so how can I justify using them?

I’ve listened to a lot of discussion surrounding this over the years, but mostly in the context of YouTube’s fair use policy, and it’s effect on creators. Specifically there was a fairly public dispute between Matt Hosseinzadeh (Matt Hoss), and Ethan and Hila Klien [1]. The Klien’s ran a popular YouTube channel, called H3H3, which produced satirical content, poking fun at others on the YouTube platform. After a releasing a few videos on Hoss, who ran his own channel producing short films, with himself as the lead, he filed a lawsuit against the Kliens. This was a lengthy saga, and stirred up a lot of conversation on what exactly constitutes fair use, and how exactly parody and satire function.

I should mention this all happened in America, where the law governing copyright is called “fair use”, which is a different system to what we have in place in Australia.

Ultimately the Kliens won the lawsuit, but it was a long and arduous journey, which clearly took it’s tole on the two of them. They won the case after the courts applied a four step analysis, this is the process used to determine if a work that contains the work of another is appropriate. [2]

Factor 1: The conditions of use
This step identifies how the material is being presented in this new work

  • In the context of someone criticizing or commenting on the original work
  • For the purpose of reporting, researching, teaching or in the context of a scholarship

If any of these factors are satisfied, It bodes well for fair use to be found. Often courts will use the term “transformative,” which asks if the work takes on new life, instead of being merely a reproduction of the original material.

Factor 2: Nature of the work
As best I could determine, this step aims to identify the nature of the original material, in order to determine how the fair use rules apply. So typically, creative works are often given heavier weighting towards the copyright holder, as opposed to non fiction materials.

Factor 3: Amount of original material used
This factor loops back to the idea of a work being transformative. Generally speaking, the less of the original material you use, the better the case for fair use. But context is also important, such as in the Klien case, this factor ruled in the Klien’s favor, as the court found they only used enough material as to accurately criticize the original material. Time is not the only factor, but also resolution of image, or any factor regarding how recognizable it is.

Factor 4: Does the new work diminish the value of the original material
This is the most complex of the factors, as what determines value can be hard to determine. In cases where the new work is commercial in nature, this can be made simpler, as value can be deemed as income gained. But if it has a different purpose than the original material, or operates in a different market, things again become unclear.

So that’s fair use, and It was, up until writing this very post, what I thought my works would be judged against. But it turns out we operate under a different law in Australia, called Fair Dealing.

Fair Dealing works in a similar way to fair use, but is considered to be more restrictive on what is an acceptable use of copyrighted works. Even if you’re work falls under the categories defined above, there are often extra conditions that muse be satisfied. In the case of criticism, where you must site the original authors and the name of their work. While using literary texts, even for research and scholarship purposes, there are limits on how much you can use before it falls outside of fair dealing. [3]

The Australian Society of Authors actually thinks very highly of Fair Dealing, and is worried about the Australian governments apparent desire to import Fair Use. Fair dealing gives greater protection to the original copyright holders, and as the laws are more restrictive, results in lower legal fees when it comes to protecting your own works [4]. I can completely understand this perspective, and it would feel dishonest arguing against it, solely because fair use would benefit me in my practice. Though I don’t think anyone could argue, that in a modern world of YouTubes and TikToks, that a legal code written in 1968 really cuts it anymore.

So what does this all mean for me and my work?

I have no idea

the end.

Nah, but actually this system seems so complicated, it feels like some insurmountable obstacle to sort through what is appropriate and what isn’t. But as a jumping off point, from what I’ve read, my collage work is most likely to fall under the satire / parody provision of fair dealing. Though this does in it’s own way present problems. For starters, satire is not the central driving point of my work, though it is a part of it. Does this mean I have to play up the satirical element? Can I only use these images in my art if I’m making fun of or criticizing them? Can’t I make work as a love letter to the printed image?

Not to mention my complete lack of book keeping when it comes to image sourcing!

For the moment, and probably foreseeable future, I’m just going to keep expanding my practice, and following my own moral compass for what seems appropriate. I very much like to think my work is transformative! But a jury of my peers may not agree.

References

  1. Matt Hosseinzadeh v. Ethan Klein and Hila Klein
  2. “Fair Use”, Columbia University Libraries
  3. “Fair Dealing and Fair Use: How Australian Copyright Differs from the USA”, Lawpath.com.au
  4. “Fair Use”, Australian Society of Authors