Publishing in general, and for the visual arts in particular, has moved to what’s called a “permission culture,” which basically means that nobody will publish your work unless you get explicit permission from the rights owner. This is often an arduous process, since art often includes many copyrighted images or other materials. A documentary film producer, for example, has to worry if an interview subject has the TV on in the background. Permissions culture means that the producer has to either remove whatever is on the TV, or secure permission to use it. It also means that scholars may not be able to publish articles that include images of the work they are discussing, either because the images are unavailable, or unaffordable.
On the surface of things, this seems odd: shouldn’t a lot of this fall under “fair use?’ The copyright statute, after all, cites education as an example. An important paper in 2007 explained why fair use doesn’t matter in this context. Basically, fair use is an affirmative defense against an infringement claim: you sue me for infringement, I claim fair use, and that’s the argument that litigation resolves. Fair use guidelines are deliberately vague and left to a case-by-case judicial determination, and so it’s not always obvious what gets counted as fair use. Litigation is very, very expensive, and publishers are risk averse. They don’t want to pay for litigation, and if they lose, they lose not only all that money, but the work they were trying to publish gets enjoined. So publishers won’t publish without prior permission (fair use thus systematically favors rich claimants and defendants). In addition to the problems all of this directly creates, it indirectly creates a ratcheting effect, because one place courts look to see if use is fair, is industry practices. So the more publishers seek permission for everything, the narrower fair use becomes.