Is it copyright infringement to use a photograph in a class project?

Is it copyright infringement to use a photograph in a class project?

Copyright is intended to protect the hard work of artists.  Copyright is the exclusive legal right, given to an artist to print, publish, perform, film, or record literary, artistic, or musical material. The exclusive right granted to an artist allows the artist to prevent all other people from using a copyrighted work owned by the artist.  The exclusive right granted by Copyright does come with limitations.  The United States Copyright Act, 17 U.S.C. 107, sets the limitations to the exclusive rights of a copyright.  Section 107 states in part that 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, scholarship, or research, is not an infringement of copyright.  Section 107 gives four factors to be considered when a fair use defense is raised.

Those factors are:

  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.

A case that illustrates the teaching fair use exception to copyright is Reiner v. Nishimori No. 3:15-cv-00241 (M.D. Tenn. Apr. 28, 2017).

In Reiner v. Nishimori a photographer named Reiner created a photograph which he sold to a stock photo company.  A stock photo company buys and compiles portfolios of photographs for commercial use.  Stock photo companies market the photos they own to advertising companies and other companies that want to use photographs for commercial purposes.  Nishimori was a student studying advertising at Watkins Institute.  One of Nishimori’s class projects was to create an fake advertisement for a grade.  Nishimori’s fake advertisement was only intended to be submitted for a grade but he also uploaded it to a publicly accessible website to archive the project.  Nishimori did not sell the fake advertisement or introduce it into the marketplace.

Reiner sued Nishimori for direct infringement and Watkins for contributory infringement.  Nishimori  was sued for direct copyright infringement because he created the fake advertisement and uploaded it to a public website.  Watkins was sued for contributory copyright infringement because the school instructed Nishimori to create the fake advertisement. The court held that Nishimori  and Watkins were not liable for infringement because their uses were fair.

The court reviewed the four fair use factors for each defendant’s actions separately.  In the case of Watkins the court held:

  1. The purpose and character of the use, the use was for “nonprofit educational purposes,” because the photograph was used to learn how to make mock advertisements.
  2. The nature of the copyrighted work, weighed slightly against fair use, because Casablanca is “more creative than factual.”
  3. The amount of work used, weighed against fair use because Watkins used the entire photograph.
  4. The effect on the market, Reiner did not establish any market harm because he did not prove “that widespread use of photographs in the manner of Watkins or Nishimori would adversely affect any potential market for his work.”

In the case of Nishimori the court’s decision was almost the same as with Watkins.  The court noted that despite the fact Nishimori uploaded the fake advertisement to a public website, the fourth fair use factor still favored Nishimori.

The court ultimate held that there was not copyright infringement because the fake advertisement was a fair use of the copyrighted photograph.

Copyright grants artists the exclusive legal right to the works, but copyright has some limitations.  If you have questions about copyright law it is best you consult with an experienced copyright attorney.

Please email the editors of this blog if you have any comments: