The assignment itself may be a fair use…but thinking beyond the assignment. If we are teaching our students that this type of assignment is okay – are we teaching them how we deducted that it was fair use? Or that when they are on their own it may NOT be fair use because they are not in a teaching situation?

I would recommend that the teacher write to the copyright holder for permission. It would be a stellar example for the students.

A single photograph could be considered a ‘whole work.’ By recreating the expression, you are violating copyright. The copyright holder has the right to distribute, sell, reproduce, create derivative works, and publicly display, to name a few. So just because the image is found online using a Google Images search, it doesn’t meant the photographer has given up any of those rights. The recreation of the photo is to capture the photographers expression – not create a new work or criticism of the work. Right?

So, if the photographer saw the pictures posted online, he or she would have a legal basis to sue and a judge would have to figure out whether or not it was fair use. Even if the students used the checklist from above and determined the use to be fair, a judge may disagree. I know, it’s not easy.

Of course, the photographer may never see it…but does that make it right? If a tree falls and no one is around to hear it…

One question which is important here is–what are the students doing with the photos they create? Are they putting them on the web, or just turning them in for this one assignment? Whenever they are doing it for a class assignment, fair use tends to apply.

If they ae for the web, it gets a little blurrier. But again, I think recent discussions of copyright would be on their side. If the work is based on another work and is a transformative use of that work, then under more current interpretations, I believe the students would be fine.

Joyce Valenza and Kristen Hokansen have done some work on this and would be great resources, by the way!

http://news.yahoo.com/s/ap/20090204/ap_en_ot/obama_poster

Here, the artist used a Google Image search to find an AP photo. He then “recreated” it but obviously with creative input. What makes things tricky is that he is now profiting from it and never credits the AP photo. I’d say the case is pretty analogous to your question and the outcome of the lawsuit will be instructive so let’s hope it doesn’t settle.

While ideas themselves are not copyrightable, the expression of ideas (in this case, pictures) are protected. Common sense suggests that simply allowing your picture to be found in a Google search does not terminate your copyright claim, or professional photographers would never use the internet.

However, doctrines like the “fair use” exception are attempts to balance the interests of individuals in protecting the fruits of their own creativity, and the public interest in facilitating further creativity through the use of what is already available. Essentially it comes down to how much of one’s own creative expression contributed to a work that also uses the creative expression of others.

This opinion is based on my law studies to date and should not be relied upon as legal advice.

Charts like this one along with other information have really helped me weigh such criteria when I am unclear as to what I can/should do:
http://www.copyright.iupui.edu/checklist.htm