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

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."

Comments

Ignorance of the law?

[orev]

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.

Re:Ignorance of the law?

[Holi]

Not according to US law you don't

Re:Ignorance of the law?

[Presence Eternal]

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.

Re:Ignorance of the law?

[turbidostato]

According to EU law you don't, either.

Re:Ignorance of the law?

[AuMatar]

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.

Re:Ignorance of the law?

[mysidia]

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.

Re:Ignorance of the law?

[dgatwood]

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.

Re:Ignorance of the law?

[Anonymous Coward]

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."

Re:Ignorance of the law?

[farble1670]

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.

Re:Ignorance of the law?

[Obfuscant]

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.

Re:Ignorance of the law?

[Registered Coward v2]

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.

Re: Ignorance of the law?

[Anonymous Coward]

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.

Re:Ignorance of the law?

[dcw3]

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

Re:Ignorance of the law?

[thegarbz]

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.

Not an unexpected ruling

[mysidia]

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.

Re:Not an unexpected ruling

[smooth wombat]

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.

Re:Not an unexpected ruling

[bugnuts]

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.

Re:Not an unexpected ruling

[zenbi]

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.

Wonder if that will work the other way...

[Enigma2175]

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.

Re: Wonder if that will work the other way...

[shaitand]

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.

Re:Wonder if that will work the other way...

[aitikin]

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.

Keys things to take from this...

[Xnet Project]

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.

Re:Keys things to take from this...

[shaitand]

"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.

overstated headline

[UsuallyReasonable]

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

copy movies as well? they are just moveing photos?

[Joe_Dragon]

copy movies as well? they are just moveing photos?

Every word of what you just said is wrong.

[siege72]

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...

Are songs and movies okay?

[Revek]

No really, how is this any different?

Re:Oops

[ichthus]

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

Not sure about this one

[argStyopa]

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?

Re:question...and answer

[ole_timer]

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