Court Rules Images That Are Found and Used From the Internet Are 'Fair Use'

A legal battle that erupted between a photographer and a Film Festival after the latter used a copyrighted photo has concluded with a federal court in Virginia, which ruled that taking an image from the Internet without permission for a commercial website can be considered fair use.

After discovering one of his images, a long exposure taken in Washington, D.C., was being used as part of guide of local amenities on the website of Northern Virginia Film Festival in 2016, photographer Russell Brammer issued a cease and desist. Thankfully, the company co-operated and removed the photo as per his request. However, when Brammer persisted by suing for copyright infringement, the company behind the festival, Violent Hues Productions, claimed their featuring of the image was fair use.

Brammer was pursuing action on two separate accounts: the initial infringement of the image being used without his permission, and also for the alteration (in this case, cropping) of the photo and subsequent removal of copyright information.

There are a number of factors that need to be looked at when considering fair use in the United States, including what the image is being used for, is it transformative, how much of a photo is being used, and whether or not the usage affects the value of the original works.

In a move sure to infuriate photographers further afield than just the West Coast, an Eastern District of Virginia judge has claimed photographs are “factual depictions,” meaning that the copying of them is fair use. Even for commercial use.

Here’s what the Court District Judge Claude M. Hilton concluded:

  • Although used on a commercial website, the use was non-commercial because it was informational rather than expressive: “[it was used] to provide festival attendees with information regarding the local area.”
  • The company believed it was publicly available as they couldn’t see it was copyrighted (and co-operated with Brammer when asked to remove it).
  • The photo was “factual” — that being, “a depiction of a real-world location” as opposed to “creative.”
  • That because the image had been published elsewhere previously, and had been done so without any indication it was copyrighted work, the image was allowed to be reproduced.
  • The image was cropped and thus, the company were being kind so as to not use any more of the photo than was absolutely necessary.
  • There was no evidence to suggest Brammer was out of pocket from the usage, and so the usage was fair game.

Writing his ruling, Judge Hilton said: “Because each of the four fair use factors favors Violent Hues, the Court finds that Violent Hues’ use was a fair use, and that there was no copyright infringement.” 

Now, Nova Southeastern University are amongst many critics claiming the Court ignored various aspects of the Copyright Act in order to make their decision. Copyright Office at the University, Stephen Carlisle, can be quoted as saying the ruling “has the potential to seriously erode the copyright protections afforded photographers.”

If you’ve got the stomach for it, there’s a seven-page long copy of the Court’s ruling available online.

Lead image by Patrick Fore via Unsplash.

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50 Comments

Ian Meyers's picture

Welcome to America, where almost every legal decision is in favor of corporate power.

Rob Davis's picture

Which is weird for a nation that values individualism so much, but you're right. For some reason, Americans do not see corporations as having the potential to oppress, but history proves otherwise.

Krzysztof Kurzaj's picture

This ruling is sketchy AF. I wonder if someone borrowing images from Apple or Microsoft website to use for their own commercial purposes can expect the same understanding.

Jim Cutler's picture

Oh boy, this logic applies to so many other visual fields in one way or another. We haven't heard the final word on this.

Rob Davis's picture

I agree. This will be appealed and there will be a lot of resources with interest in making a better case for why this is infringement.

Deleted Account's picture

This slope just got pretty slippery...

John Dawson's picture

At this point, how is "found on the Internet" any different than "found in a library" or "found in a newspaper/magazine"?

In other words, why do the means or manner of publishing matter?

John

Adam Rubinstein's picture

This is very concerning in a number of ways. It is as though the judge was implying that since the image was on the internet it was somehow in the public domain. I wonder if someone had taken a snapshot of an. artwork in a museum and done the same thing with the image whether the judge would have been so lenient?

imagei _'s picture

Probably, as the photo of an exposition would have been “factual” — that being, “a depiction of a real-world location”, then you could crop all of the surrounding and thus, be kind so as to not use any more of the photo than was absolutely necessary, and hey, you have got a copyright-free representation of anything you like.

Kyriacos Sakkas's picture

Disclaimer, I too have not read the full ruling.

I think the perdinant phrase from the article is "That because the image had been published elsewhere previously, and had been done so without any indication it was copyrighted work, the image was allowed to be reproduced.".

A magazine or book would carry copyright notices, while wherever the photo was copied from may not have had such notices.

Now, of course this ruling is wrong in many ways, but the Internet vs other media is a bit of click bait, With the terminology given, copying an image from anywhere not bearing relevant notices is fine.

Eric Mazzone's picture

Per the last adjustment to US copyright laws, photos do NOT need to have copyright information printed on or near them to have full copyright protections.

This judge needs to be deported!

Liza Rock's picture

This is ridiculous and the most ridiculous statement I read was: "The image was cropped and thus, the company were being kind so as to not use any more of the photo than was absolutely necessary." What kind of insane logic is that??? Yeah real kind to not even at least credit the photographer...

Daniel Haußmann's picture

"He stole the Ferrari, but he only drove it to his garage and not more than needed. Guess that is fair use".

Stas Aleksandersson's picture

“Found on the internet”... Great.
There are people that find things in other people’s homes, cars, etc.

al green - Light Through Glass's picture

Guess we should be outraged, but the feeling I have is that there's also plenty of people laying bait.

Mick Ryan's picture

I think I should move in to one of the judge’s homes and say “I found it on the street!”

Nathan Klein's picture

Not a creative photograph. What defines that? If we bump up contrast and saturation are we then protected under copyright?

Jason Frels's picture

This is what go me. The story said it was a "long exposure" which is often done for artistic effect like blurring clouds or waterfalls or smoothing lakes to give things an unnatural look. That sounds creative to me.

Iosif Kallai's picture

Where is the creativity? Pressing the shutter for 10 seconds? You must be a genius like Picasso to be able do do that.

Jason Frels's picture

Where is the genius of pressing a shutter at all?

If you turn around, retrace your steps a few miles, you might find the spot where you missed my point.

Dan Marchant's picture

"Court Rules Images That Are Found and Used From the Internet Are 'Fair Use' "

Except that they didn't rule that. They rules that THIS PARTICULAR image was fair use for a whole set of reasons (that wouldn't apply in many other cases).

Having said that all the reasons the judge gave were very poor interpretations of copyright law and contradict everything that has gone before and I have no doubt that the ruling will be overturned. Pretty much every stock agency and photo company will be queuing up to fund the guys appeal.

Krzysztof Kurzaj's picture

Let's not forget the justice system in US is based on precedence. Today the ruling is only about this particular case. Tomorrow other judges will rule based on this particular case.

Deleted Account's picture

Note that the court was not SCOTUS

Krzysztof Kurzaj's picture

You are correct but if this ruling is appealed and leter appelate or supreme court division upholds the ruling then it technically becomes a precedent by which inferior courts should be ruling similar cases.

Deleted Account's picture

Not quite, but you have the general idea. This is still a precedent to courts which are inferior to the federal court. Further, courts on the same level should only depart from this precedent in a number of constrained circumstances, such as if it is "plainly wrong". That said, I have seen judgements where inferior courts have applied the plainly wrong rule.

Kirk Darling's picture

There isn't an inferior court for copyright issues.

Krzysztof Kurzaj's picture

I'm not educated in legal matters but as far as I understand any copyright case can move further to appealate and supreme court divisions to be checked for consistency. Isn't that so?

Jen Photographs's picture

Agree, the title is a little misleading. However, this ruling could have a far-reaching impact in the future. It potentially sets precedence.

Jonathan Brady's picture

Irony is an article about one photographer dead set on protecting his copyright while a photograph is used by another photographer who couldn't care less about his, all on a website trying to grow the photographic community. The only entity compensated is the website while the other two entities worked for free.
The future doesn't look so bright for photographers. What's the allure? Just pack up your cameras, sell them, and find images online and write articles instead.

Rob Davis's picture

Only if monetization if the end goal of photography. If it's expression and availability then it's great.

Deleted Account's picture

Indeed, it seems a rather strange motivation to create art.

I want to build a fine art business because it will give me more freedom to make art. The simple fact is that my making of art has nothing to do with whether I make money from it or not. I simply could not imagine saying 'I'm not making money, therefore I'm going to stop taking photos'.

Amelia Wysocki's picture

This is such BS!!

Robert Nurse's picture

"Brammer was pursuing action on two separate accounts: the initial infringement of the image being used without his permission, and also for the alteration (in this case, cropping) of the photo and subsequent removal of copyright information."

Ummm, "removal of copyright information"? Really? How do you remove ownership information then claim fair use? Back to that Ferrari analogy. A guy steals a Ferrari, files down the VIN numbers, removes the license plates and uses it in for-profit ventures. Then, when busted, claims the car was just sitting there on the street and didn't know he couldn't just use it without permission. And we complain about Chinese intellectual property theft?

Jen Photographs's picture

Apparently, the photographer (or his lawyer) didn't address the watermark removal in the Motion of...I forget what it's called. And because of that, they couldn't bring it up during the court proceedings.

I would not be surprised to see them appeal this.

dred lew's picture

That's the thing though, you don't need a watermark for the work to be copyright protected. It's protected the moment you press the shutter.

Jen Photographs's picture

Right, but! Watermark removal proves willful infringement. It's harder for someone to claim, as this business did, that they didn't know any better.

It's a pretty major error for the photographer's lawyer to omit or overlook during the motion, which is why the photographer should and (i hope) will appeal.

Daniel Medley's picture

This is far from over. Hopefully this decision is appealed; if need be, all the way to the Supreme Court. Granted, I don't know the full story, but based on what I do know, there is no way this would survive a SCOTUS ruling.

Leigh Smith's picture

"...cropping) of the photo and subsequent removal of copyright information."
"...company believed it was publicly available as they couldn’t see it was copyrighted..."

Someone is a frackin lier!

Jon G's picture

This is a really bad ruling, no question. It completely fails to correctly apply current US copyright law. I hope it's promptly appealed and overturned, or the precedent it sets could do lasting damage well beyond this single case. This is a sobering reminder that judges are people too, and they sometimes make really stupid decisions – assuming no ulterior motives.

Eric Mazzone's picture

And like people breaking the law, this judge needs to be punished for not applying the law correctly. Deportation of his whole family would suffice.

Michael Coen's picture

What is lame about this whole thing is that a Fair Use exception to the Copyright law even exists to begin with. For one, the definitions for the exception are broad and can be interpreted to fit any scenario for a company who can afford a lawyer clever enough to do it. For example, how much is too much (or how little is too little). If I were to crop a copy of Back To The Future down to 80% and post it on YouTube, is it Fair Use? What is the threshold that constitutes "the amount and substantiality of the portion used in relation to the copyrighted work as a whole;" according to the law?

The Fair Use exception has got to go. It serves no purpose other than to excuse those who elect to ignore property rights. Copyright Law stipulates that once the photographer has clicked the shutter, rights to the image created are exclusive to the photographer – that should be the end of the story. In this case Violet Hues argued there was no indication of copyright, despite the fact they downloaded it from the photographer's Flickr page, and had the copyright information in plain site. Even in cases, though, where copyright isn't apparent, here's a good rule of thumb: if you didn't take the image, it doesn't belong to you, and maybe don't be a dick by using the image without the owner's expressed permission. This is how it works in every other case regarding property, and there's no reason this should be any different.

Color Thief's picture

Fair use is critical to copyright. Without it, copyright is in conflict with the First Amendment. Consider a political speech. Somebody wrote it, so it's protected by copyright. Without fair use, how could newspapers report on political speeches. What would prevent politicians from filing infringement claims against journalists who reported excerpts from a speech? Fair use is also critical in education and criticism for similar reasons. There's a lot not to like about fair use and the way the law is written, but we need it or something like it.

Stas F's picture

Great, I was just about to use this Mike Kelley photo on my website anyways

Anonymous's picture

Judge Hilton ruling is a mirror of today US.

Dorin Dragan's picture

I find this ruling quite fair to be honest. In my country the internet is considered by law public domain. Finding something in someone's car isn't a good analogy as someone's car is private domain even when it's on the public streets. Using an image of said car in a public place is however acceptable as long as it's done with the consent of the owner (consent is assumed until clearly stated by the owner that he doen't agree to using his car's image) as long as it's for informative (commercial or not) or personal use (non-commercial).

Hell, you can find images from let's say NBA games, post them on YouTube with commentary breaking down a play and it's fair use even if you make money of those images. If the NBA considers that those particular images shouldn't be used and asks the poster to take them down, AND HE DOESN'T, only them it's no longer fair use.

Again, this is in my country, but I find this decision in line with what's ok around here and it sounds perfectly fair to me too.

dred lew's picture

"In my country the internet is considered by law public domain." That's... not how the internet works, no matter where you are from. You must confuse this with publicly accessible. Not quite the same as public domain.

You also seem highly unfamiliar with how photography works, especially from a professional standpoint. - I guess you're in the right place, you'll find "a number" of articles on photography and copyright on Fstoppers. You should check them out.

Eric Mazzone's picture

Doesn’t protect me from suing a business in your country rear in US Federal court for using my images without license, especially if they have any business activity in the US.

Lawrence Jones's picture

I would expect nothing less from a former FISA court judge.

Arnel Gonce's picture

I’m confused. Fair use is for the purposes of teaching, criticism, news reporting or research. The judge doesn’t appear to understand “fair use”.

Eric Mazzone's picture

“Court District Judge Claude M. Hilton“ round him up and deport him and his whole family!