Slashdot Mirror

← Back to Stories (view on slashdot.org)

Copying Photos Found on Internet is Fair Use, Virginia Federal Court Rules (petapixel.com)

Posted by msmash on from the how-about-that dept.

Michael Zhang, reporting for PetaPixel: A Virginia federal court has made a decision that photographers won't be happy to hear: the court ruled that finding a photo on the Internet and then using it without permission on a commercial website can be considered fair use. The copyright battle started when photographer Russell Brammer found one of his long-exposure photos of a Washington, D.C. neighborhood cropped and used by the website for the Northern Virginia Film Festival on a page of "things to do" in the D.C. area.

Brammer then sent a cease and desist letter to Violent Hues Productions, the company behind the festival, and it responded by immediately taking the photo down. Brammer then sued the company for copyright infringement, and it responded by claiming fair use. In his ruling, the judge said, "Violent Hues' use of the photograph was transformative in function and purpose. While Brammer's purpose in capturing and publishing the photograph was promotional and expressive, Violent Hues' purpose in using the photograph was informational: to provide festival attendees with information regarding the local area. Furthermore, this use was noncommercial, because the photo was not used to advertise a product or generate revenue."

12 of 159 comments (clear)

  1. Ignorance of the law? by orev · · Score: 5, Informative

    found the photo online and saw no indication that it was copyrighted

    Uh, what? The basis of copyright law is that everything is automatically copyrighted by the owner. You can't just go around saying that you didn't know and just assume you can use things.

    1. Re:Ignorance of the law? by Holi · · Score: 5, Informative

      Not according to US law you don't

      --
      Sorry, teleporters just kill you and then make a copy. A perfect, soul-less copy.
    2. Re:Ignorance of the law? by turbidostato · · Score: 3, Informative

      According to EU law you don't, either.

    3. Re:Ignorance of the law? by Pfhorrest · · Score: 1, Informative

      To clarify the possible source of confusion here, copyright has only been automatic, and registration unnecessary, since the Copyright Act of 1976. Older people may have learned different laws before they changed, and not be aware of the change.

      --
      -Forrest Cameranesi, Geek of all Trades
      "I am Sam. Sam I am. I do not like trolls, flames, or spam."
    4. Re:Ignorance of the law? by dgatwood · · Score: 5, Informative

      Correct. Without registration, you are eligible only for actual damages, not statutory damages. That means if you can prove that you lost money because they did not license the work, they owe you what your licensing fee would have been, plus whatever money they made because of your work. Because they did not sell the photo in question, it is unlikely that the latter amount would have been nonzero, and unless the photographer has a posted rate schedule, it is unlikely that the first amount would have been nonzero, either, which basically makes the entire case moot even without a fair use argument.

      That said, IMO, the fair use determination is bogus, and would likely be overturned on appeal. Of course, the actual damages would still be zero, so IMO the photographer would be crazy to pursue this. The right way to handle this would be, rather than send a C&D, to send a bill for a modest licensing fee and request appropriate credit. And then, if they don't agree to the fee, send a C&D. This allows the site owner to save face for what was probably inadvertent infringement resulting from some low-level staffer making a bad choice, and gets you credit for the photo, and possibly provides an opportunity to actually make real revenue by selling prints of the photo via a page linked off of that high-traffic website. Everybody wins.

      Trying to go the lawsuit route... everybody loses except the lawyers, unless the copyright is registered, and often, even then.

      --

      Check out my sci-fi/humor trilogy at PatriotsBooks.

    5. Re: Ignorance of the law? by Anonymous Coward · · Score: 2, Informative

      Just because it works doesn't mean it's legal.

      SCO did a similar tactic against Linux users. When they made it to court, it turned out they were entirely in the wrong and ultimately the company was destroyed.

  2. Not an unexpected ruling by mysidia · · Score: 5, Informative

    A Virginia federal court has made a decision that photographers won't be happy to hear ....

    Sorry you don't want to hear about it but Fair Use applies to all kinds of works. Contrary to the implication of the summary though: Fair Use only applies in limited situations. It was very important that the Website's use was for a non-commercial purpose, their use was transformative, the intended use of the expression was to inform rather than simply to entertain or attract attention, and they didn't use the entire work. If any of those factors had been different, then the court may have rejected the website's fair use argument, So this is not the "blank check" to use photos on the internet without permission which the article implies.

    1. Re:Not an unexpected ruling by smooth+wombat · · Score: 3, Informative

      was for a non-commercial purpose,

      The whole point of advertising was to generate revenue. They were advertising the area to bring in tourist revenue. That is commercial use.

      their use was transformative

      No it wasn't. They took the literal picture and displayed it. The only thing they did was shave a bit off the edges. This is completely different than using ten seconds of a two minute song. What they did was used 1:45 of a 2:00 minute song.

      the intended use of the expression was to inform rather than simply to entertain or attract attention

      They are using his work to attract the attention of tourists which in turn will generate revenue for the area.

      they didn't use the entire work.

      See previous comment above.

      At this point photographers might as well not bother posting any of their works online since people can freely rip them off. After all, everyone is entitled to steal whatever they want without having to pay the owner for their work.

      --
      We will bankrupt ourselves in the vain search for absolute security. -- Dwight D. Eisenhower
    2. Re:Not an unexpected ruling by mysidia · · Score: 1, Informative

      The whole point of advertising was to generate revenue. They were advertising the area to bring in tourist revenue. That is commercial use.

      The concept of what commercial means is not whatever Mr. smooth wombat's personal opinion is - it is how the law and the courts have defined commercial usage; attracting interest to a geographic location or a subject matter is not "commercial" use. ---- .
      The court actually ruled according to the article that the usage was non-commercial: because the photo was not used to advertise a product or generate revenue.

      Violent Hues’ use of the photo was also in good faith. The record indicates that Mr. Mico, Violent Hues’ owner, found the photo online and saw no indication that it was copyrighted. Mr. Mico attests that he thus believed the photo was publically available. This good faith is further confirmed by the fact that as soon as Violent Hues learned that the photo may potentially be copyrighted, it removed the photo from its website.

      The Use was of a “Factual” Photo

      The photograph in question contained creative elements (such as lighting and shutter speed choices) but was also a factual depiction of a real-world location: the Adams Morgan neighborhood in Washington, D.C. Violent Hues’ used the photo purely for its factual content, to provide festival attendees a depiction of the Adams Morgan neighborhood.

    3. Re:Not an unexpected ruling by bugnuts · · Score: 2, Informative

      The court actually ruled according to the article [petapixel.com] that the usage was non-commercial: because the photo was not used to advertise a product or generate revenue.

      The court doesn’t think there’s any evidence that Brammer was financially harmed by the photo’s use.

      This is what they ruled, and that is not consistent with the law.

      They used it for commercial purposes. That they claim the owner wasn't harmed is not part of the criteria for fair use, but rather, determining damages.

      It is absolutely commercial use, and it should absolutely be appealed for the sake of all photographers out there. This is opening the gates for theft, and I'm sure every stock image company will chip in to pay for his legal fees... and a few large corporations like google might chip in to fight it anticipating a huge amount of new revenue.

  3. Re: Wonder if that will work the other way... by shaitand · · Score: 4, Informative

    Copyright is automatic, the default is not that you can grab stuff you find and use it, the default is that you can't grab stuff you didn't make and use it unless there is something indicating you CAN use it.

  4. Every word of what you just said is wrong. by siege72 · · Score: 4, Informative

    The short version: This judge is an outlier; so unless you get this. specific. judge. don't plan to claim fair use.

    Long version: https://www.trademarkandcopyri...