Over 50 years after Andy Warhol created his iconic artwork based on Campbell’s soup cans, much of his work would still be illegal if created in Australia.

That’s because among the confusing plethora of specific copyright exceptions in Australia, there isn’t a single one for artistic purposes.

This creates two tiers of creators. Some, such as journalists or critics can use quotes or excerpts under a copyright exception. But novelists, poets, sculptors and other artists cannot incorporate or build upon the work of others. From the Avalanches to Soda Jerk – Australian artists often face impossible barriers to simply create. Some have moved overseas in order to continue creating.

It doesn’t have to be like this. The world’s largest creative industries thrive in the USA where a fair use copyright exception gives artists freedom to create, remix and reimagine.

“Our members rely on the fair use doctrine every day when producing their movies and television shows – especially those that involve parody and news and documentary programs.”

Motion Picture Association of America (MPAA)

Fair use would allow Australian artists to remix, recreate and quote in ways that are fair. It would allow them to test the limits of digital media and audience immersion.

Fair use would open up the historical and cultural collections of Australia’s libraries, archives, museums and galleries for inspiration and source material. Documentary filmmakers’ organizations in the U.S. unanimously celebrate and promote fair use their memberships, because employing fair use lowers their clearance costs without impairing their revenues. Similarly historical novelists, nonfiction authors and researchers could insert material from diaries, scrap books and other ephemera. Fair use will help creators do better, and more work.

Did you know?
When Men At Work were sued for using a few notes of “Kookaburra Sits in the Old Gum Tree” they were found liable because there was no defence to permit reasonable quotation or tribute under Australian copyright law. Fair use could have led to a fairer outcome.

Australian platforms could host fair uses of material onshore, supporting a vibrant creative ecosystem. Currently fair use material, from fair use images on Wikipedia to Australian videos clips with fair use snippets on YouTube, is necessarily hosted offshore by overseas platforms. It’s not enough to support the artists, we need to also support the infrastructure that supports them.

Australian creators need fair use. It’s time to tell the government.

Want to know more?
The Motion Picture Association of America is a strong supporter of fair use, and has written about why US creators rely on it.
Similarly, the US-based Authors Alliance talks about why fair use is good for authors, and the Copyright Alliance says fair use is the Robin to copyright’s Batman.
Professor Patricia Aufderheide of American University writes on why more flexible exceptions are important for creators in the digital age – When digital changes everything, copyright might have to change too.