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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."

87 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 Presence+Eternal · · Score: 5, Interesting

      They found a picture of buildings which they then cropped. A key point is that they were using it AS a picture of buildings, not as art.

      Also they made no money from it and took it down upon request. That doesn't influence the copyright on the photo, but it establishes who the actual douchebag is. Or it establishes good faith if you want to use the term.

      I'm more interested in knowing if it's illegal to ever take the "same" photo.

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

      According to EU law you don't, either.

    4. 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."
    5. Re:Ignorance of the law? by AuMatar · · Score: 2

      So its only been this way for 42 years? If it had changed in the last decade you'd have had a point. There's been plenty of time to get to know the new rules.

      --
      I still have more fans than freaks. WTF is wrong with you people?
    6. Re:Ignorance of the law? by ScienceofSpock · · Score: 1

      Yeah, this law existed BEFORE the modern internet. No excuses.

    7. Re:Ignorance of the law? by mysidia · · Score: 2

      According to US LAW You DO have to register to have the full benefits of copyright protection:

      411(c), no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for—
      (1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or

      (2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.

    8. Re:Ignorance of the law? by suutar · · Score: 1

      depends. If you did it without being an attempt to duplicate the photo, then it's likely not an infringement. If you're deliberately trying to recreate that specific image of the subject, then you may have a derivative work.

    9. 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.

    10. Re:Ignorance of the law? by Luthair · · Score: 1

      From the description of statutory damages it sounds to me the infringer of a non-registered work would still be liable for damages calculated on the dgree of harm to the plaintiff instead of those defined in the law.

    11. Re:Ignorance of the law? by Anonymous Coward · · Score: 2, Interesting

      Hang on, if Violet Hues had used say a screenshot from an MPAA/RIAA movie belonging to Sony, Disney or their evil cousins, the "ruling" would have been very different. VH would be 100% gone and the Copyright Holder would be licking their lips in dollars awarded. But not all Copyright Holders are equal... Some lone photographer, "ah s---w them."

    12. Re:Ignorance of the law? by Actually,+I+do+RTFA · · Score: 1

      fair use (like in education) gives me the right to put on my website as long as I don't commercialize it.

      That's not true. Fair use lets you use copyrighted materials without the owner's permission, but it's not as simple as "was it for non-commercial use". There are multipronged tests and lots of gray areas. Even for educational use can be not fair use.

      --
      Your ad here. Ask me how!
    13. Re:Ignorance of the law? by farble1670 · · Score: 2

      Also they made no money from it and took it down upon request. That doesn't influence the copyright on the photo, but it establishes who the actual douchebag is. Or it establishes good faith if you want to use the term.

      Gotta love it. They took down is photo, which was more than fair and not required by law. But he had to push it further and lost, setting a precedent that his and others' photos can actually be legally used in such a context with consent.

    14. Re:Ignorance of the law? by rahvin112 · · Score: 1

      That's why we have appeals in this country.

      If the artist appeals this judge will be overturned on federal appeal, he'll be forced to assume it's copyrighted and then reevaluate if it's fair use based on the current criteria (which he might have made a mistake on as well). It may well be fair use, but his comments about not knowing it was copyrighted biased the decision so it will be handed back to him to re-review based on the very criteria listed, it's copyrighted from birth, as everything is automatically. All registration does is by you statutory damages.

    15. Re:Ignorance of the law? by Obfuscant · · Score: 2

      Also they made no money from it

      Are you seriously trying to claim that the Northern Virginia Film Festival is free and open to the public? I looked at the website and it sure looks like it is a full-blown commercial operation. I don't see what the price of tickets is, but they brag that a portion of ticket sales is donated to some charity. They also brag about the parties and participants and amount of business that takes place there. If this is anything like any other convention the operators charge a good fee to both exhibitors and visitors and take a good cut off the top for profit.

      They were using someone's image to advertise their commercial venture. Claiming they "made no money from it" is ridiculous.

      Or it establishes good faith if you want to use the term.

      Yeah, a group of film makers and distributors trying to claim "good faith" when they use a photographer's image without payment or permission is SO convincing.

    16. Re:Ignorance of the law? by Jane+Q.+Public · · Score: 1

      Yes and no. For practical purposes, mostly no.

      Prior to a few (about 15?) years ago, in order to enforce a copyright claim, the material had to be declared as copyrighted.

      That's where all those little captions came from: "Copyright (letter C in a circle) Jones Corp. 1982"

      And in fact courts ruled that the little circled "C" was not enough: it had to have the name of the copyright owner and the year the claim was being made.

      But some years back -- pretty recently -- there was a change in the law, and copyrights became "automatic" or "presumed". Before that, they weren't.

      And as it turns out, that scheme of automatic copyrights doesn't work. It has led to legitimate content being censored and taken down by people claiming copyright, who didn't have any way to prove it... or even have one.

      Now, to be clear: in the old system you still automatically HAD a copyright on any original work you created. But you couldn't enforce it in court without the claim.

      That system worked well for like 150 years. Time we went back to it.

    17. Re:Ignorance of the law? by HiThere · · Score: 1

      Copyright is automatic, but I think he may be right that you need to register it before collecting statutory damages. But, IIRC, you can register it before you file the lawsuit, you don't need to register it before the violation.

      I'm no lawyer, so this could be wrong, but that's the way I understand it. If you don't register it I think you can only collect the damages that you can demonstrate as actual damages.

      --

      I think we've pushed this "anyone can grow up to be president" thing too far.
    18. Re:Ignorance of the law? by Presence+Eternal · · Score: 1

      I gather the judge disagrees with you.

    19. Re:Ignorance of the law? by Obfuscant · · Score: 1

      Judges have never been wrong before.

    20. Re:Ignorance of the law? by AHuxley · · Score: 1

      Re "Time we went back to it."
      That allowed people to sell images to a newspaper. Sell the image to the newspaper for cash. To sell the right to use an image to a newspaper. Still keep the rights for later books, later publication.
      The photographer got paid depending on the use of the image they wanted to set.
      A quick sale. The use of an image.

      --
      Domestic spying is now "Benign Information Gathering"
    21. Re:Ignorance of the law? by youngone · · Score: 1

      You also don't have to register where I live either.
      A person at my camera club has faced this very issue, and instead of suing she just sent an invoice for $5,000 which she claimed was her rate to use the photo.
      When the website did not pay, she called in the debt collectors and wound up getting paid.

    22. Re:Ignorance of the law? by chill · · Score: 1

      You misunderstand. The picture wasn't used to advertise the festival, it was used to show "other things to do while you're in the area". That is, promoting D.C. in general, or rather specifically showing the Adams Morgan area.

      --
      Learning HOW to think is more important than learning WHAT to think.
    23. Re:Ignorance of the law? by Registered+Coward+v2 · · Score: 2

      That said, IMO, the fair use determination is bogus, and would likely be overturned on appeal.

      I would hope so; but a bigger issues many people feel anything they ind on the Internet is free to use. I worked for a company that pulled photos; chic strips, etc. and incorporated it into material we used for training sessions for which we charged (a lot). When I pointed this out one VP said "We found it on the Internet so it is free for use to use..." When I pointed out that much of our proprietary training materials are easily found online does that mean any of our competitors could use it for free, he responded "Of course not, it is our copyrighted material." At that point, I gave up arguing because you can't fix stupid so don't even try.

      I'm surprised, when we did a round of layoffs, the no one anonymously sent material to the copyright owners; since several of them were large corporations that protect their material vigorously. Whenever I wrote training material if I found something of value I'd like to use I'd license it; which often was surprisingly cheap; or use photos I took of their buildings, etc. so there was no copyright involved with the photos. ranted, they may have design patent on them but I felt we would have much stronger case, rightly or wrongly, based on how we used their items and the disclaimers I included in the material.For example, I needed a photo of a ship pulling into port and pulled one of my photos of a ship docking.

      The funny part of it is we never registered our material, so if someone did do that we could only recover a lot less than the cost of suing. While our use was clearly commercial and this different from the VA case; and I have seen similar material used in other company's training as well. it illustrates that even people who should know better think using whatever the find is ok is one even those who should know better is probably more widespread than we think.

      --
      I'm a consultant - I convert gibberish into cash-flow.
    24. Re:Ignorance of the law? by localman · · Score: 1

      Bingo. It's the same with patents. The law only helps those that are already in positions of power and wealth. It's funny because all the little guys think patents and copyright will protect them, so they cheer on the ridiculous extensions. But it'll never save them from a big team of lawyers and they're more likely to get bitten by it than helped.

    25. 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.

    26. Re:Ignorance of the law? by dcw3 · · Score: 2

      IANAL, but I don't believe precedent is set in lower courts.

      --
      Just another day in Paradise
    27. Re:Ignorance of the law? by thegarbz · · Score: 2

      Because they did not sell the photo in question, it is unlikely that the latter amount would have been nonzero

      Not true. Even without a photographer's rate schedule the benefit to the company can be estimated as can the expense they would have had to go through to obtain a similar image.

      There have been countless cases with damages awarded where non-professional photographers had their pictures used in a commercial setting without sale of the picture being involved. As much as I hate copyright law, the judge did a real WTF this time round.

    28. Re:Ignorance of the law? by AmiMoJo · · Score: 1

      I'm more interested in knowing if it's illegal to ever take the "same" photo.

      There was a case about that in the UK a few years back. Guy took a photo of a bus crossing a bridge in London. Someone else took a very similar photo and he sued. He won as well because the court found that the artistic composition was the same.

      Copyright is stupid.

      --
      const int one = 65536; (Silvermoon, Texture.cs)
      SJW, n: "Someone I don't like, and by the way I'm a fuckwit" - AC
    29. Re:Ignorance of the law? by nasch · · Score: 1

      I know nothing of the festival, but just because it isn't free to attend doesn't mean it's a for profit venture. Ticket prices could be to cover expenses.

    30. Re:Ignorance of the law? by nasch · · Score: 1

      But some years back -- pretty recently -- there was a change in the law, and copyrights became "automatic" or "presumed".

      In the US, that happened in 1976.

      Now, to be clear: in the old system you still automatically HAD a copyright on any original work you created.

      No, before automatic copyright you didn't automatically have a copyright.

    31. Re:Ignorance of the law? by redlemming · · Score: 1

      Bingo. It's the same with patents. The law only helps those that are already in positions of power and wealth. It's funny because all the little guys think patents and copyright will protect them, so they cheer on the ridiculous extensions. But it'll never save them from a big team of lawyers and they're more likely to get bitten by it than helped.

      It's more accurate to say the law primarily helps those with power and wealth. Occasionally the little guy wins. But on the whole IP law causes lots of economic problems for society, including concentration of wealth. There's an interesting discussion of this topic (with references to a number of economic studies) in The Captured Economy by Brink Lindsey and Steven Teles.

      Even aside from the economic considerations, there's really no doubt that current US copyright and patent law is implemented in a fashion that violates the Bill of Rights. The dual rights to ethical government and ethical practice of law can be asserted under the 9th Amendment (rights retained by the people), and the 10th Amendment (rights reserved to the people). Current patent law violates both rights, and current copyright law violates the right to ethical practice of law.

      In short, the Constitutional authority of the federal government to promote the useful arts and sciences has been implemented in an illegal fashion.

      This, of course, has all kinds of negative implications for society.

      Unfortunately we seem to have judges selected by politicians with an interest in preserving the mostly-illegal status quo, as opposed to actually doing their jobs. Some of these politicians accept large campaign contributions from associations of legal professionals. The phase "Land of the Lawsuit" doesn't even being to describe the full scope of the ethics problems in the USA. It's a huge mess.

    32. Re:Ignorance of the law? by BranMan · · Score: 1

      Not trying to troll, but I am genuinely puzzled by this:

      "Even aside from the economic considerations, there's really no doubt that current US copyright and patent law is implemented in a fashion that violates the Bill of Rights. The dual rights to ethical government and ethical practice of law can be asserted under the 9th Amendment (rights retained by the people), and the 10th Amendment (rights reserved to the people). Current patent law violates both rights, and current copyright law violates the right to ethical practice of law.

      In short, the Constitutional authority of the federal government to promote the useful arts and sciences has been implemented in an illegal fashion."

      Can you please explain how you think they are illegally implemented? Or point me somewhere that explains it?

    33. Re:Ignorance of the law? by redlemming · · Score: 1

      This topic has come up on a number of prior Slashdot discussions: a lot of different people have had a lot of different things to say about it.

      One key issue starts from the idea that the right to ethical practice of law is an universal and inalienable right in any society based on the rule of law. As such, it is protected as a right "retained by" and "reserved to" the people by the highest law in the land: when lessor law comes into conflict with the Bill of Rights, the lessor law must yield or the government is breaking the law. Rights retained by the people are retained by the people by definition, so no entity of government can create or allow any law or precedent that violates these rights.

      As is typical with legal and professional codes that embody ethics rules, even the appearance of conflict of interest must be avoided when reasonable alternatives exist.

      There are a number of ways in which copyright and patent law violate this right as currently implemented (trademark does as well, so the whole family of "IP Law" has problems).

      For example, consider the role of contract in copyright. Contracts are the "bread and butter" of the legal profession: contract related matters are an extremely important source of income for legal professionals. This creates conflict of interest with respect to the nature, scope, duration, and form of contract law: in other words, what is subject to contract, what can be put into contracts, when contracts can be written, how long they last, and how they are enforced.

      Thus, the current practice of extending copyright law indefinitely, with copying subject to or depending upon getting a contract with the copyright holder for that duration, in effect creates a substantial amount of long-term business for the legal profession.

      This in turn creates conflict of interest for legislators who are lawyers voting on copyright law, for legislators in general who receive campaign contributions from associations of legal professionals, for the legal professionals working on the staff of legislators (who do most of the actual work of writing the law and have influence over the politicians and the final form the law takes), for the prosecutors that bring criminal cases involving copyright, and for the judges that hear all criminal and civil cases involving copyright. In case of the judges, they are often selected for higher office by the same politicians who receive campaign contributions from those associations of legal professionals, and their salaries and benefits are also subject in some ways to the decisions of these politicians, and the politicians are also in a position to potentially decide whether or not the Constitutional requirement of "good behaviour" has been met - leading to multiple potential conflicts of interest (even excluding the extra-legal ones).

      In other words, the longer the duration of copyright SUBJECT TO CONTRACT, the more contracts get written, the longer contracts can last, and hence the greater the long-term business created for the legal profession. Current copyright law creates an artificial demand for the services of lawyers, by how the law is implemented. The supply of lawyers is relatively fixed (it changes only slowly over the long term), so the greater the demand, the greater the lifetime income of members of the profession. This creates at least the impression that the legal profession is being unethical - and perhaps the reality - with respect to how copyright law is written and implemented, and there are reasonable alternatives, so the right to ethical practice of law is being violated. Hence, there is a conflict between copyright law and the Bill of Rights, and the lessor law is supposed to yield.

      For example, there could a mechanism by which copying is no longer governed by contract after some short period of time (perhaps 5-10 years, it might depend on the work - it should be considerably shorter than the lifespan of a typical legal professional), but instead by some simple compensation scheme. Perhaps

    34. Re:Ignorance of the law? by terrycarlino · · Score: 1

      This to me shows one of the problems with photographs and copyright. Many photos have an aspect of artistic and technical competences about them which makes them unique.

      Quite a few others are in no way unique, this especially applies to something like a street photo. If 100 people stand in a particular place on a street corner and use a photo capturing device they will produce 100 different photos that are effectively identical except for the metadata on the digital file. How can such a cookie cutter set of effectively identical collections of pixels?

    35. Re:Ignorance of the law? by terrycarlino · · Score: 1

      Not entirely true. Single frame use and even clips are allowed under fair use for purposes of review, parody and educational use.

  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.

    4. Re:Not an unexpected ruling by zenbi · · Score: 2

      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.

      A bit off the edges? They only used 36% of the original image.That's a pretty hefty shave IMO.

    5. Re: Not an unexpected ruling by hackwrench · · Score: 1

      Doesn't make it right.

    6. Re: Not an unexpected ruling by Cederic · · Score: 1

      I've taken plenty of photos that people wouldn't even pay a few bucks for.

      They've still cost me the financial costs of camera equipment, travel and software, the time involved in taking them and the costs of gaining the experience that led me to take that photograph and process it in that form.

      This is why I let my friends use my photographs for free but charge companies several hundred pounds.

      You're significantly under valuing what it takes to 'snap' a photo. It's very fucking different to the perceived market value.

    7. Re:Not an unexpected ruling by nasch · · Score: 1

      You're conflating transformation with extent of the work used. Transformative use doesn't mean changing the copyrighted work, it means using it in a different way. And it has nothing to do with how much of the work is used.

  3. Wonder if that will work the other way... by Enigma2175 · · Score: 4, Insightful

    When a company or organization appropriates an individual's photo for commercial use, the court found that it's fair use, but I'm betting they'll sing a different tune if it is an individual taking a corporation's intellectual property and have repeatedly found for the corporations in previous cases. To claim something is non-commercial when it's being used to promote your for-profit film festival is bullshit, that's like me screening the latest incarnation of Star Wars to my neighborhood and selling them greatly overpriced popcorn and snacks then claiming it's not a commercial use since I didn't actually sell the movie.

    --

    Enigma

    1. Re:Wonder if that will work the other way... by suutar · · Score: 1

      don't forget transformative, informative, and not the whole work. Which pieces are you going to cut, and how is what's left informing the neighborhood about your popcorn business?

    2. 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.

    3. Re:Wonder if that will work the other way... by Enigma2175 · · Score: 1

      I'm going to slightly crop the movie, just like the "transformative" use in this case. I'll just advertise my popcorn business and under "things to do in the area while eating your popcorn" I'll show my cropped Star Wars.

      --

      Enigma

    4. Re:Wonder if that will work the other way... by aitikin · · Score: 2

      When a company or organization appropriates an individual's photo for commercial use, the court found that it's fair use, but I'm betting they'll sing a different tune if it is an individual taking a corporation's intellectual property and have repeatedly found for the corporations in previous cases.

      An important part of this decision was the fact that it was non-commercial for a non-profit organization. It meets all 4 of the qualifiers (the stretch there is the "transformative", but being non-commercial alleviates a lot of that issue) and the fact that it was a small crop seems to have made a major difference as well. I don't agree with the decision here, but I can see where the judge's coming from.

      --
      "Don't meddle in the affairs of a patent dragon, for thou art tasty and good with ketchup." ~ohcrapitssteve
    5. Re:Wonder if that will work the other way... by suutar · · Score: 1

      so you're going to cut out the top half or the bottom?

      Showing a still would be sufficient for "things to do in the area", so showing more would likely fail the test.

    6. Re: Wonder if that will work the other way... by Luthair · · Score: 1

      Should require notice of copyright in the form of a watermark

      Based on this logic every image not just photos would need a watermark, ditto for any video. Company logo? Watermark. Nat Geo? Watermarks.

    7. Re:Wonder if that will work the other way... by GezusK · · Score: 1

      Exactly. I've heard of school systems getting in trouble for using images they found on the internet for school logos. Clearly, this isn't commercial use, yet they had to stop doing so.

    8. Re: Wonder if that will work the other way... by bugnuts · · Score: 1

      Personally i think the law should require notice of copyright in the form of a watermark or some other means.

      While this is a de facto method of preventing infringement, it's automatically copyrighted by treaty that nearly all nations have signed onto.

      This requirement you suggest is really bad. If someone crops or removes a watermark and reposts it, it would allow someone else to appropriate that image. You could make a company that all it does is remove watermarks from one of the few countries that is not a Berne treaty signatory, and others could claim it wasn't copyrighted because it had no watermark, ignoring that some asshole removed the notice.

      By making it automatically copyrighted, it removes this dangerous loophole. If it's fixed in a permanent medium, it's copyrighted. Oddly, the creative commons accidentally added it back in, because some people were doing exactly that and causing a minefield for people using works in the creative commons. It puts a big burden to double-check all CC works.

    9. Re:Wonder if that will work the other way... by Enigma2175 · · Score: 1

      An important part of this decision was the fact that it was non-commercial for a non-profit organization.

      Do you have some information that I don't have? Yes, the court ruled that it was non-commercial, since it wasn't directly selling a product (other than promoting the film festival, which I would consider a product), but it appears this film festival is put on by Violent Hues Productions, which does not appear to be a non-profit. Since the film festival site lists the Violent Hues business telephone number as the sole contact I would argue that the film festival is a commercial operation, promoting Violent Hues. Even the "sponsorship" page on the festival's site indicates the sponsors are participating for commercial reasons:

      The NOVA Fest is excited to partner with companies that align their philanthropic and business objectives

      If their "business objectives" are like any other business on the planet, they are about making money.

      --

      Enigma

    10. Re: Wonder if that will work the other way... by Cederic · · Score: 1

      All my photographs have copyright notices in the metadata. That doesn't stop someone from copying them, stripping the metadata (easily done by accident - e.g. uploading to imgur.com strips metadata) and someone else finding that photograph.

      Similarly watermarks and other visual elements can be removed.

      The copyrights for those photographs remain nonetheless with me.

      Sadly in the UK the law doesn't actually support me against companies that might misuse them, due to the Enterprise and Regulatory Reform Act 2013.

    11. Re:Wonder if that will work the other way... by samwichse · · Score: 1

      This also seems like a pretty strong factor:

      "Furthermore, the scope of fair use is broadened when a copyrighted work has been previously published. It is undisputed in the record that Brammer previously published the photograph on several websites as early as 2012, and at least one of these publications did not include any indication that it was copyrighted. This prior publication and Violent Hues’ use of the photo for its factual content favors a finding of fair use."

    12. Re: Wonder if that will work the other way... by shaitand · · Score: 1

      Look you won't find much support from me for copyright as it exists but if it is going to continue to exist we need to keep remembering why it was made that way it is. Copyright is automatic so that poor people who can't afford to file have their ideas protected. There should be no benefits to wealth under the law.

  4. Fair Use by Anonymous Coward · · Score: 1

    Possibly the court stretched the definition of Fair Use a bit since it was obvious the Film Festival wasn't attempting to sell the photo and and they also quickly removed the photo when asked.

    1. Re:Fair Use by Cederic · · Score: 1

      The court has other avenues available though that wouldn't include a judgement that exposes them to ridicule on the internet.

      E.g. they could have agreed that the use of the photograph was indeed wrong and that damages are indeed due. As the photograph was heavily cropped, available only for a limited period, removed immediately on request and incidental to the primary purpose of the site (and related festival) actual damages comprise around $3.

      Next case please..

  5. Keys things to take from this... by Xnet+Project · · Score: 5, Insightful

    These are key things to consider in this "Fair Use" decision:

    1.) Furthermore, this use was noncommercial, because the photo was not used to advertise a product or generate revenue."

    2.) 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.

    These are important reasons to consider when it comes to fair use cases.

    1. Re:Keys things to take from this... by shaitand · · Score: 3, Insightful

      "1.) Furthermore, this use was noncommercial, because the photo was not used to advertise a product or generate revenue.""

      But it was, it was used to advertise a for-profit film festival.

    2. Re:Keys things to take from this... by suutar · · Score: 1

      It was in a "this is the neighborhood" section. Probably figured the odds of someone deciding to attend the festival based on something in the "what else is there to do in the area" was low.

    3. Re:Keys things to take from this... by shaitand · · Score: 1

      Maybe but someone figured there was enough chance it would contribute to people buying tickets to pay someone to make that section as part of a for-profit effort. Anything you do THINKING it will contribute to making a profit is for-profit, including bad ideas that actually cost you money.

  6. overstated headline by UsuallyReasonable · · Score: 4, Insightful

    What a ridiculously overstated headline. The court certainly DID NOT come to that conclusion.

  7. copy movies as well? they are just moveing photos? by Joe_Dragon · · Score: 2, Interesting

    copy movies as well? they are just moveing photos?

  8. 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...

    1. Re:Every word of what you just said is wrong. by suutar · · Score: 1

      Interesting. Thanks for the pointer :)

    2. Re:Every word of what you just said is wrong. by rahvin112 · · Score: 1

      The judge is outside his element. Almost 99.99% of all copyright decisions have been made by the 9th circuit. Essentially the entire court findings on copyright were made by the 9th circuit. These judges in the Virginia circuit likely never see copyright cases and are simply not experienced in its legalities and he tried to find a way for the local defendant to win. The judge found the supreme court test for fair use and misapplied it with several bad assumptions.

      If the artist appeals, the decision will be tossed on appeal. As others have pointed out the use wasn't transformation per the supreme court description of transformation and the judges decision on what constitutes commercial use doesn't comply with past supreme court guidelines. My bet is a bunch of the stock photo companies will jump in and help pay the legal fees to appeal this to get this judgement pulled from the records. This might still be fair use, but the analysis was flawed and the finding needs to be appealed to prevent such inappropriate use of copyright law to remain on the books as precedent in the Virginia circuit.

    3. Re:Every word of what you just said is wrong. by Raenex · · Score: 1

      he tried to find a way for the local defendant to win

      That's probably the most overriding factor.

    4. Re:Every word of what you just said is wrong. by nasch · · Score: 1

      Almost 99.99% of all copyright decisions have been made by the 9th circuit.

      That is an interesting claim and seems very unlikely. Why have virtually no copyright cases come up in other circuits? Surely there are people pursuing copyright infringement outside of the western states. Do they not appeal their cases to the circuit court level?

    5. Re:Every word of what you just said is wrong. by terrycarlino · · Score: 1

      Almost 99.99% of all copyright decisions have been made by the 9th circuit.

      That is an interesting claim and seems very unlikely. Why have virtually no copyright cases come up in other circuits? Surely there are people pursuing copyright infringement outside of the western states. Do they not appeal their cases to the circuit court level?

      Because the 9th circuit is in the pocket of the corporations holding the IP. It is a corporate friendly court and so corporations holding IP and wishing to sue attempted to get their case heard there. The 9th has pretty much done all they can to gut Fair Use.

  9. Re:WTF by Archangel+Michael · · Score: 1

    Whether this is due to staggering incompetence and stupidity, or just a malicious intent

    Any sufficient level of incompetence is indistinguishable from malice.

    --
    Agent K: A *person* is smart. People are dumb, stupid, panicky animals, and you know it.
  10. Re:Photographers... by nospam007 · · Score: 1

    "The fucking Harlan Ellisons of Lawsuit Land."

    Alas not, Harlan died last week, the photographers are still alive.

  11. Are songs and movies okay? by Revek · · Score: 2

    No really, how is this any different?

  12. Re:Oops by ichthus · · Score: 2

    Exactly. They complied with Brammer's cease and desist, and then he sued them. What a dick. Glad he lost.

    --
    sig: sauer
  13. question...and answer by ole_timer · · Score: 1

    can a teacher (of any level) show a copyrighted movie free to the whole class? answer: yes, under fair use.

    --
    nothing to see here - move along
    1. Re:question...and answer by Actually,+I+do+RTFA · · Score: 1

      No, a teacher cannot use a copyrighted movie just because it's for educational purposes. That rule would make it awful hard to make educational materials.

      --
      Your ad here. Ask me how!
    2. Re:question...and answer by ole_timer · · Score: 2

      then a lot of teachers broke the copyright law and should pay fines...clearly that's not happening, so what is happening?

      --
      nothing to see here - move along
    3. Re:question...and answer by Actually,+I+do+RTFA · · Score: 1

      then a lot of teachers broke the copyright law and should pay fines...clearly that's not happening, so what is happening?

      The same reason a lot of drivers broke speed limits and should pay fines... clearly that's not happening, so what is happening?

      --
      Your ad here. Ask me how!
    4. Re:question...and answer by nasch · · Score: 1

      No, a teacher cannot use a copyrighted movie just because it's for educational purposes.

      Why do you say that?

      That rule would make it awful hard to make educational materials.

      Not at all, because almost no commercial movies have a legitimate educational use. I'm now wondering about my kid's school showing the students a movie on the last day of school for no educational purpose whatsoever. I wonder if anyone considered copyright issues.

    5. Re:question...and answer by ole_timer · · Score: 1

      the same people are tax cheats too...

      --
      nothing to see here - move along
  14. Not sure about this one by argStyopa · · Score: 5, Interesting

    It seems a little malicious that he sent the c&d, they complied, and THEN he sued them anyway.

    I know law has little to do with reasonability, but it would seem reasonable to say:
    - you can use pictures you find on the web, unedited, for non commercial purposes
    - if the owner sends a cease-and-desist you must remove the image

    So this lets people generally use images that they find on the web without too much worry. If a photographer wants to keep their images safe they can just watermark them, stamp their website on them etc. If you edit the image you can be assumed to be trying to evade copyright and be punished accordingly.

    That doesn't seem too unreasonable either way?

    --
    -Styopa
  15. Some of the reasoning seems a stretch. by 91degrees · · Score: 1

    The Use was Transformative and Non-Commercial

    Advertising a commercial event is surely commercial.

    The Use was "in Good Faith"

    Isn't this more about mitigation of damages rather than a fair use claim? Anyway, if another photographer passed it off as their own, I could see this. It seems very presumptuous to assume that this was not taken by a professional or a skilled amateur, with desires to become a professional. Removing it as soon as the photographer complained I guess shows good faith but that's all.

    The Use was of a âoeFactualâ Photo

    Hogwash. Time lapse in this case was entirely an artistic effect. If the photographer wanted a purely documentary photo of this street, he would have taken it during the day when there's light.

    The Use was of a Previously Published Photo

    Really, I'd have thought this would add strength to the photographer's case. It clearly has commercial value.

    The Use was Only a Crop Rather Than the Whole

    It was cropped... It did, however, include a substantial part of the original image, and the most prominent part.

    The Use Didnâ(TM)t Hurt the Potential Market

    Possibly one of the more compelling arguments. Not totally sure I agree.

    I could perhaps see an argument that this was not fair use but the damages were small because of the limited nature of the use, but saying this is fair use seems like an unreasonably broad interpretation.

  16. Re:Non-commercial use has no legal basis by 91degrees · · Score: 1

    Nowhere in Copyright Law does it differentiate between commercial and non-commercial use.

    This is part of the "purpose and character of the use" in the four factor test. I think this is more legal precedent than explicit law.

    The C&D DMCA takedown resulted in a successful takedown (and therefore compliance).

    That's not how DMCA takedowns work. This only protects the host. Not the infringer. The intent of the law is the host has no need to confirm copyright status of every upload, but that the copyright holder can still claim damages from the person who uploaded. .

  17. Re:So using images the judge online would be fine? by 91degrees · · Score: 1

    Yes. That is a much stronger fair use claim though. You are adding commentary that is directly relevant to the work in question.

  18. Copyright is too restrictive by David000000000000000 · · Score: 1

    I'm one of those who believes that copyright lasts too long. The Constitution allows patents and copyrights for limited times. Patents are 20 years, With copyright, you will die before the copyright expires. It started out as 28 years (14 years + 1 14-year renewal.) Retroactive copyright extensions also prevent works from entering public domain as they otherwise would have (https://law.duke.edu/cspd/publicdomainday/). Copyright was intended to give the creators the rights to their work for limited times, and then to enter the public domain. It was never intended to provide a continuing income stream for the heirs and estates.

    1. Re:Copyright is too restrictive by terrycarlino · · Score: 1

      And of course generally it doesn't provide a continuing income stream for the heirs and estates, it provides a continuing income stream fro the corporation that bought the rights to the work, in their mind for perpetuity.