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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."

14 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 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.

  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
  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 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. 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.

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

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

  6. 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...

  7. 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