Is it considered fair use for a student to reproduce a copyrighted photograph for public display in an academic institution having cited the original published source but not having sought and received express permission from the copyright holder? The image is reproduced in its entirety with overplayed text added by the student. The posters are the product of an academic exercise. It has been proposed to display them for a period of 2 months in an area open to the public.
You, reader, will never know my answer to this question.
That’s because to truly answer it, I had to contact the member and get some more information. The information I received, and the answer I gave in return, were so specific, the content was no longer suitable for a general-audience response.
It had become legal advice, not just “guidance,” or “commentary,” or “analysis.” It was confidential, tailored to one entity, and protected by attorney-client privilege.
This is the challenge with fair use questions: they turn on numerous precise details.
That said, I can say that the bare-bones scenario above gives a few reasons to be cautious. The use of the entire work, and the display in a public area, are red flags.
But I also want to caution you about too much caution. Both those risk factors: use of the entire work, public display—could be easily balanced by an exercise in compare-and-contrast, substantive criticism, or in-depth analysis.
This is why an educational institution should always use a “fair use checklist” to address questions of fair use. An educational institution that uses a checklist has a good chance of determining that a use is “fair,” and while doing so, also creates documentation showing that their conclusion—even if later ruled to be erroneous—was in “good faith.” This exercise can limit damages, later.
The most recent case law involving use of a photograph in an academic setting, Reiner v. Nishimori, did result in a finding of fair use, and is an instructive example. In that case, students used the plaintiff’s copyright-protected stock photograph to practice making advertisements.
Here is the court’s analysis of the case, using the fair use “four factor” test:
That’s Reiner v. Nishimori, where fair use carried the day. But with a few tweaks of the facts, it could have had a different outcome.
And that’s while you may never know the real answer to this question.
 This makes it sound like it was rated “R.” I assure you, the content was PG. It was just legal advice.
 A very good example can be found here: https://copyright.cornell.edu/sites/default/files/Fair_Use_Checklist.pdf
 Reiner v. Nishimori No. 3:15-cv-00241 (M.D. Tenn. Apr. 28, 2017)
 This factor routinely messes up judges, and I personally disagree that “creative” works might qualify for more protection that laboriously and carefully assembled facts. But I am not a judge!