A Photographer Sued a (Former) Student Over a School Project. Guess How That Turned Out–Reiner v. Nishimori

In 1997, TC Reiner worked with SuperStock to create a photo entitled “Casablanca.” If I understand it correctly, Reiner and SuperStock put significant time and money into creating the photo on spec, with the hope that a future advertiser would license it. You can see the photo as Exhibit A to the complaint. It’s not 100% clear if Reiner or SuperStock own the photo, but that issue proves immaterial. SuperStock advertised the photo for licensing through its catalog.

Judith Sweeney O’Bryan was an adjunct at Watkins College of Art, Design and Film in Nashville (she’s now an associate professor there). She required her students to create a mock ad using a set of photographs she designated “by cutting stock photographs out of magazines and stock photography catalogues and scanning them on her computer.” [Before you get too snarky, note this incident took place nearly a decade ago.] The photo set included Casablanca. “O’Bryan did…contact her Dean at Watkins to ask whether using any of the photographs would infringe a copyright, and the Dean assured her that it would not.” A student, Ryon Nishimori, used Casablanca to create a mock ad for Dr. Scholls (see Exhibit C of the complaint). The scanned version of the photo included some metadata from SuperStock, but Nishimori edited it out. Nishimori subsequently uploaded the mock ad to his Flickr account as a form of cloud storage. Watkins subsequently changed its policy to use only Creative Commons-licensed photos for this class project.

The opinion does not explain why Reiner sued in 2015 over a 2008 incident. The complaint suggests that Reiner didn’t discover the use until 2014. The court does not discuss any statute of limitations; which makes sense only because, after Petrella, apparently copyright’s statute of limitations are functionally irrelevant. (I know the statute of limitations is tolled until the plaintiff discovers the infringement, but if the photo was publicly posted to Flickr in 2008, I don’t think tolling should apply).

What should Reiner have done when he discovered a (former) student used the Casablanca photo in a class project to make a mock ad for Dr. Scholls? I can think of many good things he could have done–personally, if I were that upset, I’d have an extra scoop of ice cream for dessert–and suing the (former) student would not be on the list. Reiner saved the extra calories but nevertheless made a dubious choice. He sued the student and the university for copyright infringement and 1202 violations. The court analyzes Watkins’ and Nishimori’s fair use defenses separately:

* O’Bryan’s scan of the catalog image. “Watkins only used the work as a raw material for a purely educational exercise. Watkins gave the photograph to the students so that the students could learn to create a mock advertisement, not so the students would benefit merely from absorbing the content of the photograph itself. This is a nonprofit educational purpose.” The second and third factors go against fair use. The fourth factor goes in favor of fair use:

Reiner has not proven even that there is a market for photographs to be used as part of educational design exercises. Reiner, in fact, has not produced evidence of a single instance in which he or anyone else was voluntarily paid for the right to use a photograph in a student-created mock advertisement or other student design project. Reiner has not proven that widespread use of photographs in the manner of Watkins or Nishimori would adversely affect any potential market for his work.

The fact that Watkins subsequently changed its policy to only use Creative Commons licensed photos for free “significantly diminishes the argument that Watkins’ use had any negative market affect” because, I infer, there was a large enough supply of no-cost substitutes that the copyright monopoly over the Casablanca photo did not matter.

The court summarizes:

Watkins used the photograph in a nonprofit educational setting and did not profit from the photograph at all. There is no proof before the Court that any market for using photographs in this setting existed for Watkins to disturb by using the photograph without paying for it. Rejecting the fair use defense and allowing this case to go to trial would stifle the creativity that the fair use doctrine is intended to protect.

* Nishimori’s uses. The fair use factors resolve the same for Nishimori. He made a noncommercial transformative use, the second and third factor weigh against fair use, and the fourth factor weighs in Nishimori’s favor: “Reiner fails to prove that there is a market for students to use photographs provided by their teachers to complete classroom assignments, nor is there a market for paying for storage of the photographs.”

The 1202 claim fails on scienter grounds. Nishimori wasn’t trying to suppress evidence of infringement; he was just cleaning up the photo so it would be suitable for his mock ad.

I wonder if the court will consider a 505 fee shift in this case. To me, this wasn’t really a close case. Sure, Watkins could have started using Creative Commons-licensed photos earlier. However, as the Watkins Dean rightly concluded at the time, the fair use defenses were obvious. Indeed, I’m having a hard time imagining a better paradigmatic example of a noncommercial educational usage of a photo than this situation. Perhaps a 505 fee shift will encourage future photographers to pick extra ice cream scoops over ruinous litigation.

As you may have noticed, Venkat and I rarely include photos with our blog posts any more. For several years, we had a free license to use stock photos from ShutterStock. After they ended the license, I’ve been reluctant to find other photo sources. I’ve occasionally used Unsplash and Pixabay for public domain photos, but their coverage is spotty. Also, I’m nervous that the photos aren’t actually in the public domain. Plus, finding a contextually helpful photo can be hard, so it’s not always worth the extra time. I apologize we don’t have as many photos as we used to, but cases like this remind me why I sleep better at night because of it.

(Process note: I deserve some credit for not making a single pun about the movie Casablanca, which is an all-time classic movie BTW).

Case citation: Reiner v. Nishimori, 3:15-cv-00241 (M.D. Tenn. April 28, 2017). The complaint.

Note: Updated to clarify that Nishimori was a former student when he was sued.