Q: Is using various photos as reference for publishing art under Fair Use?

A: 1. Using Referenced Images for Commentary or Analysis

Including the original reference images alongside your ex-partner’s artwork for the purpose of commentary, critique, or scholarship can potentially fall under Fair Use, especially if:

The inclusion transforms the original material (i.e., used to analyze how it was incorporated into new artwork).

The purpose is educational, critical, or documentary—not purely commercial.

The amount used is limited to what is necessary for the analysis.

The market effect is minimal (i.e., it doesn’t replace or devalue the original works).

2. Image Source & Copyright Ownership

Here’s how the origin of the images may affect things:

Work-for-hire images: If you were paid to create photos under a contract that designates them as work-for-hire, you likely do not own the copyright, even if you took them. Reproducing them—even in small sizes—without permission may be problematic.

Photos from the internet (not yours): If these weren’t yours to begin with, using them without knowing their source or rights status can be risky. Even if your ex used them for reference, reproducing them might require permissions unless Fair Use clearly applies.

Personal photos (e.g., family events): If you took them and own the copyright, you have more leeway to include them—although privacy concerns could come up depending on the context and people shown.

3. Size, Format, and Context Matter

Thumbnail-sized images used for reference or commentary are more likely to be considered Fair Use. Courts have found reduced-size images for indexing or comparison purposes (like in Perfect 10 v. Amazon) to be permissible.

Full-size or high-res images increase risk—especially if the image itself is highly expressive, commercial, or being used beyond what's necessary to make your point.

The context of publication (e.g., a gallery book, academic study, online exhibit) can influence the Fair Use analysis—educational and nonprofit uses are more favorably viewed than commercial ones.

THIS IS NOT LEGAL ADVICE

A: That's a great question, and I think that you should be on pretty safe ground because your use is transformative: it is designed to shine a light into your partner's creative process, which is quite different from the original purposes for which the reference images were created. I would recommend that you keep the reference images of a fairly small size (eg. 500 pixels in height or width), and if you are able to credit the original creators of the reference images, that would also help you.

A: Transformative use from the original purpose for which the art was created is the most important factor for Fair Use. To determine Fair Use we would need more facts about what your proposed secondary purpose is in referencing the art in its new context. If the art is based on some of your previous work, we would need more facts to determine if the art is considered original. If it is not original artwork, you may not need to consider if your use is Fair Use.

If you do consider it to be original art (despite being influenced by some of your previous work or posts), or you are uncertain of its originality, and you still need to consider Fair Use, read our article which addresses all the factors related to Fair Use:

https://pendulumlegal.com/is-the-purpose-in-using-copyrighted-material-plainly-different-from-the-original-purpose-for-which-it-was-created/

A: When it comes to using photos as references for art, Fair Use can be a tricky issue, especially when those images are not your own work. The Fair Use doctrine generally allows for limited use of copyrighted material for purposes like criticism, commentary, and analysis. However, whether your partner's use of these images falls under Fair Use depends on several factors, including the nature of the use, the size of the image, and how it’s being published.

For example, if the images are used in a way that adds new meaning or transforms the original, like for critique or educational purposes, they may be more likely to qualify as Fair Use. However, if these images were not altered significantly or used in a transformative way, the risk of copyright infringement could increase, especially for work-for-hire images or those that belong to someone else. The fact that some of these photos were sourced from the internet, and not necessarily in the public domain, adds another layer of complexity.

The size and form of publication can also affect the Fair Use evaluation. If the images are used in a small, non-commercial setting for analysis or critique, that may help argue Fair Use. But if the work is published widely or commercially, this could weigh against Fair Use. It's important to weigh these factors carefully before proceeding.