It’s been widely held that the first prong of fair use will be satisfied if an artist or any person uses the image for purposes of commentary, criticism, reporting, or teaching. What this means is that “Fair use” (17 U.S.C. §107) is a limitation on the rights of copyright owners. Because of fair use, certain kinds of uses are allowed, without permission or payment – in fact, even in the face of an explicit denial of permission – at any point during the copyright term. Fair use is why things like quoting a book in order to review it, or publicly displaying a reproduction of an artwork in order to critique it, are legal.
For the purposes of Workshop use, the rub lies in the phrase “non-profit educational institution.”
The Educational Fair Use Exemption has been held to not apply outside the nonprofit, in-person, classroom teaching environment! It doesn’t apply online – even to wholly course-related activities and course websites. It doesn’t apply to interactions that are not in-person – even simultaneous distance learning interactions. It doesn’t apply at for-profit educational institutions. It must be said that even many professors are not aware of these limitations.
The Classroom Use Educational Exemption also only authorizes performance or display. If you are making or distributing copies (i.e., handing out readings in class), that is not an activity to which the Classroom Use Exemption applies.
Using an image for the purposes of critique may satisfy the fair use exemption, but you would need to have teaching materials that show the purpose of this use and you risk needing to defend an infringement action. You may want to also consider non-legal matters of relationship and building your business network. While the old adage says “it is better to seek forgiveness than ask permission,” the same may not be said for copyright infringement, especially if you are making money out of teaching workshops!
There are also some additional matters that apply where a class is not taught in a classroom format, and instead is taught online. The TEACH Act (17 U.S.C. §110(2)) does create some rights for teaching uses of copyrightable works in the online environment, but it’s much more technical and there are a lot more restrictions. This is definitely an area where consulting an attorney is a good idea.
Columbia University has a fair use checklist that may be helpful if you are contemplating use of copyrighted photography in your photography workshops – https://copyright.columbia.edu/basics/fair-use/fair-use-checklist.html
So what do you do to make sure that you’re not infringing copyright if you are selling tickets to your workshops or offering workshops for a for-profit institution? You could try to document such that you would have a defense for an infringement action on the grounds that you are using the image for the purpose of critique. But, the best course of action is to get permission to use the image. What this means is seeking out a license for the use of the image.
This could be as simple as asking permission from the photographer and explaining the purpose of your use. However, don’t be surprised if there is a license fee involved.
Another option is to seek out images with creative commons licenses already in place. It would, of course, be very important not to use anyone else’s images in advertising or promoting your workshop unless you have a license to do so. Please exercise caution in using images downloaded from the internet. Search engines, websites, and other digital environments are going to display a mix of works protected by copyright alongside works in the public domain. Be sure to ascertain the copyright information for each image and the conditions of use.
In any case, teaching a photography workshop is a great opportunity to encourage your students to produce good work, and for you to continue to build your business network in a way that will honour the rights of the photographer’s whose work you would like to highlight, or those you are seeking to critique. If you do use an image, whether under “fair use” or under license, you must provide attribution to the author, creator, or producer of each image (digital or print). Cite the image using a citation style appropriate for your work.