Art student, school find fair-use shield for photo used in class assignment and posted on Flickr

Andy Warhol, Jeff Koons, Damien Hirst. These artists, and many others, have famously exploited existing images in their own works. While such “appropriation” operates in a gray area of copyright law, iconoclastic pop-artists remain undeterred.  And as aspirants follow their role models, it’s unsurprising that challenges arise—notably and recently in an an art class at the Watkins Institute.

Students at the Nashville school were given photos and asked to create a mock product ad. So, très, Warhol, right, and are legal eagles already seeing the court case brewing?

Fortunately for the school and the student, both of whom ended up as defendants in the recently decided copyright infringement case Reiner v. Nishimorisome sorta ivy tower defenses came to their rescueLet’s focus on academic fair use and its role in this visual controversy, shall we?

A mock ad assigned

The drama unfolded when Judith Sweeney O’Brien, a Watkins adjunct, launched her students on their ad project, providing them, too, with a selection of photos they might employ. Their choices came from images she had culled from various sources.

The options—which she didn’t secure rights to but was told by her dean wouldn’t infringe—included a 1997 shot, “Casablanca,” by TC Reiner, a professional photographer. The chillin’ scene appealed to student Ryon Nishiromi, who not only used the shot for his classwork but also posted his assignment on Flickr, an image-sharing site.

Reiner learned of the posting and ending up suing Nishiromi and Watkins for infringement and on a claim they violated Section 1202 of the Digital Millennium Copyright Act by removing key identifying information from a protected work.

The defendants, on summary judgement, defeated the photographer, arguing he did not own rights to the disputed image because he had transferred his ownership to a third party, and his copyright was invalid because he improperly registered his work as unpublished. A key to the successful defense also zoomed in on fair use of the photo.

Fair use claim

To determine the fair use claim, the court considered: (1) the purpose and character of use, including whether it was commercial or for nonprofit educational purposes (2) the nature of the copyrighted work (3) the amount and substantiality of the portion that was used of the copyrighted work; and (4) the effect of use on the potential market for, or value of the protected work.

The court found the photo was employed in an educational, nonprofit fashion, and, even when the shot went on Flickr, this was for personal use and no profit was made. U.S. Chief Judge Waverly Crenshaw did determine Reiner’s photo was creative and not factual, meaning it might deserve higher protection, and the court found the work had, indeed, been published. Further, Nishimori had used the whole picture, and even in its re-purposing, it was recognizable.

But the plaintiff struggled to persuade the court of the photo’s market value and how the class assignment use had harmed it. Reiner noted that in some similar instances, schools and teachers had licensed photos and paid appropriate fees. He could not establish that this was the general and accepted practice, nor could he demonstrate Nishimori’s use had undercut his photo’s market value.

Courts aren’t required to give equal weight to each of the four factors considered in a fair use defense, and Crenshaw said that ruling in Reiner’s favor would “stifle the creativity that the fair use doctrine [wa]s intended to protect.”