Yes, educators can incorporate copyrighted images into open educational resources under fair use, specifically supported by the Code of Best Practices in Fair Use for Open Educational Resources and the parallel Code of Best Practices in Fair Use for the Visual Arts. The key is that the use must be transformative—serving a new pedagogical purpose fundamentally different from the image’s original purpose. A copyrighted historical photograph, for example, can be incorporated into a history textbook when accompanied by educational analysis that examines it as historical evidence. The entire photograph is typically appropriate to use (entire images are often necessary for fair use in visual contexts), but resolution and file size should be limited to what’s appropriate for the pedagogical purpose (full-screen projection, not high-resolution downloading for reproduction). This guide addresses common scenarios educators encounter, provides practical guidance aligned with the Code’s principles, and clarifies what makes copyrighted image use defensible versus problematic.
The Code’s Framework for Visual Illustrations
The Code of Best Practices in Fair Use for Open Educational Resources explicitly addresses incorporation of copyrighted images through Principle B: Including Inserts for Illustration. This principle recognizes that educational materials often require authentic, specific images to illustrate concepts effectively—and that openly licensed alternatives may not be available for every pedagogical need.
What Constitutes “Illustration” in Educational Context
Principle B applies when:
- Photographs illustrate historical events, periods, or phenomena
- Visual materials exemplify concepts or theories being taught
- Images document phenomena being studied (scientific images, documentary photographs)
- Visual examples support pedagogical narrative and learning objectives
- Images are used to make abstract concepts concrete
Principle B does NOT apply when:
- Images are exclusively or primarily decorative without pedagogical substance
- Copyrighted images used solely for aesthetic/eye-candy purposes
- Images have only tangential connection to learning objective
- Example: Using adorable baby animal photographs to decorate a history chapter unrelated to content
The Essential Distinction: Fair use requires that incorporated images “substantially enrich pedagogical purpose and narrative”. Decoration without educational substance does not qualify.
Three Key Considerations for Illustration Principle
1. Explain Pedagogical Significance
The Code Requirement: “OER creators should be prepared to explain the intended significance of an illustrative insert in the context of the OER where it appears”.
This means you must be able to articulate, clearly and specifically:
- Why THIS image serves THIS learning objective
- How image significance relates to what it depicts, relationship to surrounding text, or characteristics of image itself
- What students will understand better by viewing this specific image
Examples of Strong Pedagogical Rationale:
- “This 1960s Civil Rights photograph illustrates segregation practices we’re examining in this chapter. Students analyze the photograph to understand visual representation of injustice.”
- “This electron microscope image of a cell membrane shows the structure we’re analyzing in this unit. The magnification demonstrates why microscopy was crucial to understanding cellular biology.”
Examples of Weak Pedagogical Rationale:
- “This nice landscape photograph adds visual interest to the chapter.”
- “This photograph of children learning in Africa decorates our introduction about global education.”
2. Use Limited Amount from Each Source
While using entire single images is typically fair use (discussed below), you should avoid relying heavily on images from one copyright holder.
Principle: “The value of inserts is often derived from their breadth and variety”.
Practical Application:
- If illustrating historical period, use photographs from diverse sources (Library of Congress, different photographers, archives) rather than extracting extensively from one photographer’s portfolio
- Avoid reproducing extensive collections from single copyright holder
- Illustrate with variety; cite multiple sources
Why This Matters: Using diverse sources demonstrates transformative educational purpose, not reliance on single copyrighted work. It shows pedagogical breadth, not copyright circumvention.
3. Check for Open Alternatives First
Code Guidance: “Avoid using a copyright-protected work when an open or free-to-use alternative is available and would serve the same illustrative purpose”.
Practical Implementation:
- Search Creative Commons repositories (Wikimedia Commons, Flickr CC-BY, Unsplash, Pexels, Pixabay)
- Check public domain collections (Library of Congress, government archives, museums)
- Verify whether image actively marketed by copyright holder
- Only use copyrighted image if open alternative is genuinely inadequate
This Does NOT Mean: You must settle for “pretty close” alternative. If copyright-protected image better serves learning objectives, fair use permits its use. But systematically check for openly licensed options first.
Four-Factor Fair Use Analysis for Copyrighted Images
Factor 1: Purpose and Character of Use
Educational purposes strongly favor fair use.
Teaching as Transformative Purpose
Using copyrighted images for teaching is explicitly recognized as fair use purpose. The key is transformation: image serves fundamentally different purpose than original.
Examples of Transformative Uses:
| Original Purpose | New Educational Purpose | Transformation |
|---|---|---|
| Journalism: Document news event | History teaching: Examine historical moment | Journalistic evidence → Historical analysis |
| Artistic creation: Display for aesthetic appreciation | Art history: Analyze technique and composition | Aesthetic viewing → Technical study |
| Documentary film: Entertainment | Media literacy: Analyze representation and bias | Entertainment narrative → Critical analysis |
| Scientific publication: Report research findings | Introductory biology: Illustrate concept | Specialist communication → Pedagogical explanation |
Contrast: Non-Transformative Uses:
- Using museum artwork solely for aesthetic decoration: same purpose as original (aesthetic appreciation), just in different context
- Using news photograph in journalism course only to illustrate how news photography works (not addressing why THIS photograph matters for learning)
- Reproducing images in same context/purpose as original
Online vs. Classroom Context
In-Person Teaching: Strongest fair use position for educational use.
Online Teaching: Fair use still applies, with nuance:
- Using image in restricted course management system (Brightspace, Canvas, Blackboard) limited to enrolled students = strong fair use
- Using image on freely accessible personal website without restrictions = fair use still applies but slightly weaker position
- Important: “Access restrictions are not a requirement of fair use, but they demonstrate good faith intention to limit use to educational purposes”
Practical Implication: If incorporating copyrighted images in online OER (inherently openly accessible), you’re still relying on fair use, but openly accessible nature means you should be particularly careful about all other factors (amount, market impact, etc.).
Factor 2: Nature of the Copyrighted Work
Photographs and images are creative works, which slightly limits fair use. However, fair use explicitly applies to creative works in educational settings.
Documentary vs. Artistic Photographs
Documentary Photographs (more favorable for fair use):
- News photographs
- Historical documentation
- Scientific photographs
- Archival images
Artistic Photographs (slightly less favorable but still fair use in education):
- Fine art photography
- Art created for aesthetic purposes
Key Point: Even creative, artistic images can be fairly used for educational purposes. Creative nature does NOT prevent fair use; educational purpose and transformation do.
Factor 3: Amount and Substantiality
Critical Finding: Courts recognize that entire photographs can be appropriate for fair use in educational contexts.
Why Entire Images Are Often Appropriate
Photographs are unified wholes; their meaning comes from complete composition:
- You cannot analyze photographic composition or visual properties by showing only a portion
- Visual meaning depends on complete frame: proportions, spatial relationships, placement of elements
- Entire image necessary to accomplish pedagogical objective
Visual Arts Code Guidance: “The amount and kind of material used and (where images are concerned) the size and resolution of the published reproduction should not exceed that appropriate to the analytic objective”.
Translation: Use entire image if necessary; crop if visual analysis permits. The test is pedagogical necessity, not percentage.
Size and Resolution Standards
The Code explicitly does NOT provide universal pixel-size rules or resolution requirements. Instead, guidance is contextual and purpose-driven:
Visual Arts Code Principle: Size should be “appropriate to the analytic objective”.
Practical Guidance:
- For Display/Projection: Images should be “suitable in size for full-screen projection or display on personal computer or mobile device, but generally not larger”
- For Downloading: If providing downloadable versions, same standard applies—suitable for full-screen but not high-resolution archival reproduction
- Scholarly Argument Standard: “Images incorporated at size or resolution necessary to make best scholarly argument. For example, large images may be best or even required”
- For Print: If OER will be printed, 300 dpi (dots per inch) recommended for image quality
What This Means:
- Don’t provide high-resolution downloads that enable reproduction of copyrighted work
- Do provide sufficient resolution for educational purpose (full-screen viewing, classroom projection)
- Size should reflect pedagogical use, not archival preservation or high-quality reproduction
Why This Matters: Providing high-resolution, archival-quality images exceeds educational need and suggests market substitution (reproducing images for reuse).
Factor 4: Effect on Market
Strong Fair Use Position: Using copyrighted images for educational purposes typically does NOT compete with copyright holder’s market.
Market Differentiation
Original Image Market (weakened by educational use): Commercial licensing, fine art sales, stock photography agencies, news licensing
Educational Market (separate from original): Teaching, scholarship, learning objectives
Result: Students using OER do not substitute for:
- Purchasing the original image
- Licensing the image for commercial use
- Accessing original artwork/photograph in its original context
When Market Effect Is Negative (Caution)
Active Educational Licensing Market: If copyright holder licenses images specifically for educational use:
- Licensing market exists for educational uses
- Incorporating without license directly competes with licensing revenue
- Fair use position weakened
Example: Stock photography sites like Shutterstock, Getty Images license images specifically for educational use. Downloading copyrighted stock images to avoid licensing fees competes directly with market.
Best Practice: If image licensing market exists (you see licensing options online), either license or find alternative image.
Practical Scenarios: Clear Fair Use Cases
Scenario 1: Historical Photograph in History Textbook
Situation: Educator creating OER history textbook wants to incorporate 1960s Civil Rights Movement photograph (copyrighted, likely held by photographer or news archive) showing a segregated lunch counter sit-in. Photograph accompanied by analysis examining the historical event, participants, social context, and why this image exemplifies segregation practices being studied.
Four-Factor Analysis:
Factor 1—Purpose: Educational; transformative. Original purpose: documentary journalism. New purpose: historical pedagogy examining this specific moment. Photograph examined as historical evidence, not reproduced for journalistic purpose. ✓ Favors fair use
Factor 2—Nature: Documentary photograph. While photographs are creative works, documentary photographs are more amenable to fair use than purely artistic works. ✓ Favors fair use
Factor 3—Amount: Entire photograph used. Appropriate because complete image necessary to analyze segregation as visually represented. Cannot analyze visual composition if cropped. ✓ Favors fair use
Factor 4—Market: Educational use does not substitute for original market. Historians/educators using OER do not reduce demand for original photograph or licensing revenue. ✓ Favors fair use
Overall Conclusion: Fair use applies
Key Implementation Details:
- Accompany photograph with scholarly analysis
- Provide attribution (photographer name, date, source, publication)
- Use resolution suitable for textbook display/projection, not archival reproduction
- Consider sourcing from open archive if available (Library of Congress, etc.)
Scenario 2: Artwork Analysis in Art History Course
Situation: Art history educator creating online OER course examining Impressionist painting techniques. Incorporates copyrighted Monet painting to analyze brushwork, color theory, composition—skills students must master. Image displayed in course management system accessible to enrolled students, accompanied by detailed analysis of painting’s formal properties.
Four-Factor Analysis:
Factor 1—Purpose: Educational; transformative. Original purpose: artist’s aesthetic creation. New purpose: art historical analysis of technique. Painting examined as object of study, not for its original aesthetic purpose. ✓ Favors fair use
Factor 2—Nature: Creative artistic work. Less favorable than documentary images, but educational context and transformation support fair use. ✓ Somewhat favors fair use
Factor 3—Amount: Entire painting displayed. Necessary to analyze painting’s composition, brushwork, color relationships. Cannot teach about Impressionist technique analyzing only portion of painting. ✓ Favors fair use
Factor 4—Market: Educational use does not substitute for museum visits, art sales, or art appreciation market. Students using OER do not reduce demand for experiencing paintings in museums or galleries. ✓ Favors fair use
Overall Conclusion: Fair use applies
Key Implementation Details:
- Explain why THIS painting chosen (specific techniques illustrated)
- If downloadable images provided, resolution suitable for full-screen viewing, not reproduction
- Accompany with scholarly analysis of artistic techniques
- Provide attribution (artist, painting title, date, museum location)
- Restrict access to course participants if possible (strengthens fair use, though not required)
Scenario 3: News Photograph in Media Literacy
Situation: Media literacy educator creating OER examining how news photographs shape public understanding. Incorporates copyrighted news photograph from major news event to analyze media representation, framing choices, and potential bias. Photograph analyzed within framework of media literacy, not reproduced for journalistic purpose.
Four-Factor Analysis:
Factor 1—Purpose: Educational; transformative. Original purpose: journalistic documentation. New purpose: media literacy analysis of how photographs construct meaning. Photograph studied as example of media practice, not for original journalistic purpose. ✓ Strong fair use
Factor 2—Nature: Documentary photograph. Favorable for fair use. ✓ Favors fair use
Factor 3—Amount: Entire photograph. Necessary to analyze media framing and composition. Cannot teach media literacy analyzing only portion. ✓ Favors fair use
Factor 4—Market: Educational use does not compete with news market. News consumers not reduced; photograph licensing revenue unaffected. ✓ Favors fair use
Overall Conclusion: Fair use applies
Key Implementation Details:
- Explain specifically how photograph illustrates media concepts being taught
- Accompany with media analysis questions (How is perspective framed? What is visible/invisible? What reaction might photograph provoke?)
- Provide attribution (photographer, news source, date)
- Use resolution suitable for analysis, not archival quality
- This educational analysis makes fair use strong
Special Cases and Nuances
Photographs of Two-Dimensional Artworks
Important Legal Development: Federal court ruling in Bridgeman Art Library v. Corel Corporation (1999) established that direct, accurate photographic reproductions of 2D artworks lack sufficient originality to qualify for copyright protection.
What This Means:
- Photograph of painting by museum photographer = not copyright-protected (photograph itself)
- Underlying artwork may be copyrighted, but photograph of artwork is not independently protected
- Therefore: You can use photograph of 2D artwork found online without fair use analysis
Practical Application:
- Find photograph of famous painting on image database
- Use photograph in OER
- Copyright issue is original artwork (not photograph)
- If original artwork in public domain (most pre-1928 works) = freely usable
- If original artwork copyright-protected = analyze copyright of artwork, not photograph
This simplifies: Using museum photographs in educational contexts becomes easier because the photograph itself is unprotected.
Thumbnail Images for Databases
Fair Use Application: Educational institutions may include digital thumbnails in searchable image databases.
Standards:
- Thumbnail = small-scale, typically low-resolution digital reproduction
- Thumbnails have “no commercial or reproductive value”
- Educational institution may include digital thumbnails in searchable institutional catalog used by students
- Fair use supports this use
Example: Your institution creates searchable database of historical photographs. You include low-resolution thumbnails (e.g., 100×100 pixels) enabling students to find images, but provide full-resolution only through institutional access or fair use analysis.
Images with “All Rights Reserved” on Flickr
Scenario: Educator finds photograph on Flickr with “All Rights Reserved” (ARR) mark. Can they use it in OER?
Two Options:
Option 1: Fair Use Analysis
- ARR mark indicates copyright protection
- Evaluate four fair use factors
- If fair use applies, can use image
- If fair use weak (primarily decorative, high market impact), need permission or alternative
Option 2: Linking Rather Than Copying
- Instead of downloading and embedding image: link to Flickr URL
- Linking = ordinarily not copyright violation
- Provides attribution, enables students to access original source
- Educator avoids reproduction issue entirely
Best Practice: If copyright uncertain and fair use not strong, linking is preferable to copying.
Online Display vs. Downloadable Images
General Fair Use Position: Both are fair use if pedagogically justified.
Nuance:
- Display Only (cannot download): Stronger fair use position. Demonstrates limitation to educational viewing. Prevents reproduction
- Downloadable: Fair use still applies, but you should ensure resolution is limited to what’s pedagogically appropriate. High-resolution downloads for archival preservation exceed fair use scope
Visual Arts Code Guidance: If providing downloadable images, “should be suitable in size for satisfactory full-screen projection or display on a personal computer or mobile device, but generally not larger”.
Practical Implementation:
- If website platform permits: restrict download or resize to web resolution
- If downloadable: provide standard web resolution (suitable for full-screen, ~72-150 dpi), not print resolution (300 dpi)
- This demonstrates limitation to pedagogical use, not reproduction
Addressing Copyright Holder Access and Attribution
Ethical Best Practice: Attribute ALL image uses, regardless of copyright status.
Visual Resources Association notes: “Use of images in scholarship is fundamental to advancement of collective knowledge”. Attribution serves this goal by enabling others to verify and locate sources.
What to Include:
- Image/artwork title
- Creator/artist name
- Date created/photographed
- Source (publication, archive, URL, museum)
- Copyright/license statement
- Link to original source when possible
Attribution Even When Difficult: If photographer unknown, provide best available information and acknowledge uncertainty.
Red Flags: When Fair Use Does NOT Apply to Images
Purely Decorative Use
Not Fair Use: Using copyrighted images exclusively for decoration or aesthetic enhancement without pedagogical substance.
Example: Adorable baby animal photograph decorating history chapter about agriculture with no connection to learning objectives.
Why Not Fair Use: Fails “illustration” principle. Cannot explain how image substantially enriches pedagogical purpose.
Using High-Resolution Downloads for Reproduction
Problematic: Providing high-resolution, archival-quality images without pedagogical limitation.
Risk: Courts may infer image provided to enable reproduction rather than education.
Better: Limit downloadable resolution to pedagogical use (full-screen display, classroom projection).
Competing with Licensing Market
Not Fair Use: Incorporating images actively licensed for educational use, thereby avoiding licensing fees.
Example: Stock photography sites license images for educational use. Downloading without license competes directly with licensing market.
Solution: License, find alternative, or ensure fair use strong (decorative use unlikely if licensing market exists).
Using Entire Works as Market Substitute
Not Fair Use: Reproducing entire photographer’s portfolio or collection to avoid purchasing.
Example: Downloading all images from photographers’ portfolio to avoid licensing collection.
Why Not: Entire collection substitutes for market; defeats copyright protection entirely.
International Considerations
Fair Dealing in Canada
Canada has adopted parallel Code of Best Practices in Fair Dealing for Open Educational Resources. Fair dealing framework similar to U.S. fair use, with comparable scope for illustrations, criticism, and learning materials.
For Canadian Educators: Follow same principles; Canadian code addresses jurisdiction-specific considerations.
Fair Dealing in UK
UK fair dealing more restrictive than U.S. fair use:
- Educational copying more limited
- Research/study use recognized but narrower
- International OER incorporating images should understand international variability
For International Projects: Prioritize openly licensed images; document fair use carefully if copyrighted images used.
Practical Implementation Checklist
Before using a copyrighted image in OER, complete this analysis:
Step 1: Pedagogical Purpose
- Can you explain clearly why THIS image serves THIS learning objective?
- Is image necessary and integral, not merely decorative?
- Have you checked for open/freely licensed alternatives?
Step 2: Transformative Use
- Does the image serve a different purpose than original?
- Is it examined in new context, with new analysis, adding new meaning?
- Would original copyright holder recognize this as different use?
Step 3: Amount Analysis
- Is the entire image necessary, or only portion needed?
- If displaying online, is resolution limited to full-screen viewing?
- Are you providing archival-quality downloads or limiting to web resolution?
Step 4: Market Analysis
- Does licensing market exist for educational use of this image?
- Will including this image compete with copyright holder’s market?
- Are there actively licensed alternatives?
Step 5: Documentation
- Have you documented fair use reasoning?
- Have you prepared attribution statement?
- Can you explain your analysis if challenged?
Step 6: Implementation
- Include pedagogical context (explanation of why image matters)
- Provide complete attribution
- Limit image size/resolution as appropriate
- Make fair use basis clear (if using direct labeling: “[F] This photograph, included on basis of fair use, illustrates…”)
Conclusion: Copyright Images Enable Pedagogically Strong OER
The Code of Best Practices in Fair Use for Open Educational Resources, developed by OER community leaders and refined through consultation with educational professionals, provides clear framework for incorporating copyrighted images when pedagogically justified and no openly licensed alternative adequately serves learning objectives.
Key Takeaways:
- Yes, copyrighted images can be used in OER when fair use applies
- Entire images are typically appropriate when necessary for pedagogical purpose (analyzing photographs, artworks, visual materials)
- Transformative educational use (image examined in new context, with new analysis, serving different purpose than original) strongly supports fair use
- Resolution and file size should be limited to what’s pedagogically appropriate (full-screen display, not archival reproduction)
- Documentation and attribution demonstrate good faith and strengthen fair use position
- No successful litigation against communities with Code of Best Practices shows codes reduce legal risk
By carefully analyzing fair use factors, checking for open alternatives first, documenting reasoning, and providing attribution, OER creators can confidently incorporate copyrighted images that serve pedagogical purposes while respecting copyright principles.