Fair Use Assessment of Student Works in Portfolios and for Use in Marketing

A set of questions about student use of third-party works and subsequent faculty use of the student’s works was just posted to FaceBook group page I monitor.  I have been asked similar questions repeatedly, so rather than respond to that group, I decided to blog my response.

The questions boiled down to this: (1) how does fair use apply to digital art students including in their portfolios works they’ve created that incorporate third-party works (or portions thereof); and (2) how does fair use apply to faculty using the students’ works to market the digital arts program?

Fair Use is Many Things

The fair use analysis is a risk assessment.  This means many things.

It means that thinking of the fair use analysis as a spectrum is a good way to think of it, both overall and for each factor.  Sometimes your conclusion will be solidly at one end of the spectrum, but those are the easy decisions; the challenges – and questions! – come when your conclusion lies somewhere in between.

This means that going through the fair use analysis is not the end of your journey.  Once you’ve made your risk assessment, you then must decide whether to proceed with any identified risk.  Risk tolerance varies tremendously between institutions/entities, and the decision of whether to use will depend on that risk tolerance.

(As an aside, too few institutions actually discuss the issue of risk tolerance in the copyright context, in which case those who rely on fair use on a regular basis – instructors, librarians, educational technologists, etc. – are left with little guidance.  This is one reason so many find fair use to be frustrating.  This is also one reason – a really good one! – to have copyright policies and procedures in place, ideally at an institutional level.)

Transformative Use

One key here is the issue of “transformative use” under the first factor (purpose and character of the use).   A use is transformative if it uses the underlying work in a different way or for an entirely different purpose than the underlying work is used.  A transformative use does more than “merely supercede” the use for the original, altering it with “new expression, meaning, or message.”  Classic examples are parodies (as distinguished from non-parodic satires) and Google’s use of images in its image search engine.

Courts love transformative uses right now.  In theory, a use could be transformative but still not fair, but to date, in every case in which a court has found a use to be transformative, it has also held it to be fair.

One must be careful to distinguish between changing the way a work is used and changing the work itself.  It is easy to conflate the two, and that is furthered by the fact that in many cases of transformative use, both occur.  Remember that the doctrine of fair use, and more specifically, the first factor, are about USE of a work.  To be transformative in a copyright sense, the use of the work must be transformed.

The courts themselves were confused on this point for a while.  Although there is now judicial consensus on this issue, both courts and copyright experts continue to disagree on other aspects of transformative use.  One major area of controversy is appropriation art.

In the 2013 case of Cariou v. Prince, the Second Circuit held as transformative and fair defendant artist’s incorporation of plaintiff artist’s photographs into defendant’s own paintings and collages.  The Seventh Circuit, as well as some copyright experts, has criticized the holding as potentially undermining a copyright owner’s right to prevent others from creating derivatives of her work.

The Questions at Issue:  Student Use in Portfolio

In some cases, the student use might constitute transformative use.  In such a case, the use will almost certainly be deemed to be fair.  However, as Cariou and its aftermath warn, one needs to be very careful in making the assessment of transformativeness.

Regardless, with few exceptions, the student use would likely be considered fair, assuming the use truly is as part of a portfolio (in comparison, posting the student’s works on Instagram and then referring potential employers to view them there would be a bit riskier).  Here’s a very brief analysis:

Factor 1:  While not educational, the use is not truly commercial, either, so neutral at worst.

Factor 2:  I assume plaintiff’s works are creative, so this factor would disfavor fair use, but this factor seldom carries much weight.

Factor 3:  A copyright owner could argue that the student has used more than she needs to achieve her artistic purpose.  I would argue that this applies to the original use, not the use in the portfolio; and that since, for portfolio purposes, the student needs to show the entirety of her own work, this factor favors fair use regardless of how much she has taken of the original.

Factor 4:  It’s very unlikely the use will have any effect on the marketplace.

The Questions at Issue:  Use for Marketing the Digital Arts Program

There are many ways in which the student work could be used for marketing, and of course, the fair use analysis will be different for each.  So I’m going to give you two scenarios here, to show how the analysis can vary.  (Note that the question of obtaining the student’s permission to use the work was not raised, but clearly the institution would need to do this.)

The first scenario comes from the original question as I understood it:  A faculty member takes examples of student works on recruiting visits to high schools to show the students what the digital arts program is all about.  In the second scenario, the school displays student works in formal marketing materials, from printed brochures to the digital arts program website, with one or two select works prominently displayed for the purpose of drawing attention.

Factor 1:  In the first scenario, any benefit to the school is so distant from the use of plaintiff’s work, I believe it would be difficult to argue that the use is commercial.  One could even argue that the use should be considered educational because it promotes education.

In the second scenario, however, it is much easier for the copyright owner of the most prominently displayed work to argue that both the purpose and character of the use are commercial.

Factor 2:  Same as for student use.

Factor 3:  This may vary by work.  It is possible that in some cases, the institution’s purpose could be achieved by showing less than the entirety of the student work (and thus less than the entirety of the portion of plaintiff’s work).  Assuming that the institution has used no more than necessary to achieve the purpose of recruiting students or marketing the program, this factor should not disfavor fair use.

Factor 4:  In the first scenario, there is very little risk to the marketplace for the original work.  The second scenario, however, could be very different, and depends in part on how much of the third-party work is used.  The closer the use is to serving as a replacement for the original, the less likely this factor is to favor fair use.  That, in part, depends on what the marketplace for the work is, e.g., does the plaintiff license digital uses of the work?

Conclusion

As always with fair use, it depends!  I hope this discussion and analysis helps not only in making a fair use assessment, but also in seeing how a user can craft the details of the use to strengthen the fair use argument.