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Federal Court Rules Copying Photos Found on the Internet Is Fair Use

In: ,
Published: 06/07/2018
By: larry

An article over at reports on an outrageous Virginia Federal Court decision that finding a photo on the Internet and using it without permission on a commercial website can be considered fair use.

In the United States, whether or not the use of copyrighted material without permission can be considered fair use (17 U.S. Code § 107) depends on four main factors: (1) the purpose and character of the use (including whether it’s “transformative” and commercial vs. non-commercial), (2) the nature of the copyrighted work, (3) how much of the work is used, and (4) how much the use affects the market and/or value of the work. The video above explains fair use and this decision in more detail.

Stephen Carlisle, the copyright officer of Nova Southeastern University, has written up a lengthy rebuttal of the opinion and writes that the ruling passed down on June 11th, 2018, is one that “has the potential to seriously erode the copyright protections afforded photographers.”

Very disappointing for decision photographers!

12 comments on “Federal Court Rules Copying Photos Found on the Internet Is Fair Use”

  1. I read about this and also read the two rebutting articles. This was at 10pm Central last night shortly after the post, the worst time to read articles that may anger you. And anger me, it did. It seemed like the sitting judge was willfully ignorant or just apathetic to copyright law to the point he handed down the verdict he did.

    BUT, this is why I tell people (I'm not a lawyer or even an expert in copyright law) in the FB groups and such to sue as a last resort in infringement cases, because they aren't guaranteed to win a lawsuit even when they think everything is in their favor. I've seen people talking about suing over a single damn photo and people arguing in favor of suing, egging the poster on to go nuclear over a photo worth maybe $50 at best. It might be worth it to sue over a stolen photo that made the photographer and the infringer a ton of money, but even then, as seen here, not a guaranteed win. You can always get a judge who is sympathetic with the dumbest, most simple defense arguments like "fair use." Yes, it's dumb that a person who didn't see a copyright notice just figured that it wasn't copyrighted, but I also think it was a deliberate thing in this case. As the rebuttals said, "good faith" does not hold up against liability, or in layman's terms, you can't get off Scott-free just because you were ignorant of the fact it was wrong to do a thing. Unless, of course, you're Violent Hues. Either Brammer had a really incompetent lawyer, or Violent Hues had a really great one, but my guess is that Brammer had an incompetent one because you'd think defending proven copyright was a done deal. It should have been a slam dunk for this lawyer. But then I imagine that even the best lawyer is powerless in the face of a judge who either doesn't know copyright well or has a personal bias.

    I feel like you HAVE to be discerning and willing to give grace when ignorance can be assumed, at least when it's dealing with a single stolen photo in Real Estate. Brammer had every right to sue in his case and I honestly don't blame him. I'd have been rooting for him--DMCA takedowns, even when the offender complies, don't just end the situation. But in our case, we have to run a business, which is hard to do when we are salting the fields of any real estate agent who dares to be ignorant of the fact that using one photo that doesn't belong to them might not be kosher. "Giving grace" doesn't mean letting them off the hook, just educating them by way of direct conversation or by calling the MLS to have the infringed photo removed, or even a DMCA takedown or complaint to the realtor's local board of ethics. Grace is not suing at the drop of a hat and letting every other realtor know it'd be better not to work with you because you don't give the benefit of the doubt for mistakes. There's a push-pull argument that can be made here, in that, sure, we need to give grace when we judge that it's the best approach, but at the same time we don't make much money and need to protect ourselves and our intellectual property.

    As to this case, I'd be surprised if it couldn't be easily overturned in an appeal given the glaring disregard for copyright law displayed by the judge. Agents can be ignorant, sure, and even though it's not a real defense, so can people who take photos without thinking they might belong to someone. But a JUDGE has no excuse. I'll also say that even Google Images puts a notice on every search result that says (paraphrasing), "This image may be subject to copyright." Even absent a copyright notice, there was no excuse for this case to have gone in the defendant's favor.

    While bewildering, I'm not sure that the other articles talking about this case aren't being a little alarmist when asking if this verdict could shake copyright law to its core and turn it on its head.

  2. It used to be, I didn’t worry too much about folks using my images from the internet because they were so low in resolution that there really wouldn’t be any practical use for them. Those were in the days of print...back when you needed a high resolution file for any real world use.

    Flash forward 20 years...print is dead (or at least with one foot in the grave and the other on a banana peel), and online media rules the lives of nearly everyone. Stock houses are dead... and a Federal court rules that all images online fall under fair use.

    I’m not that worried...really. It’s still going to be necessary to hire a photographer to create images to sell a product, record an event, take a portrait, or to take video footage.

  3. This is never going to get better until they start appropriately punishing people. This decision does the opposite of course. I do not see why the government hesitates to start enforcing copyright strictly. To me, there is a big distinction between a 14 year old kid who downloads something illegally, and adults who use illegal downloads commecially and for monetary gain. That seems like such an easy place to draw the line and really start throwing the book at people: if you violate copyright, and use the material commercially, you should be subject to severe penalties.

    Look at it like this, if someone walks into a store and steals something, it is not as bad as what these copyright infringers do. They are stealing, AND they are gaining commercially from it. The thief did not even get to the commercial gain part of it all. So why not at least punish them similarly? It would be so great to start seeing handcuffs on people who do this stuff, it is the only way to stop it.

  4. There's a couple of things to keep in mind here, and it is not necessarily related to this case as i haven't delved into the details of it.

    Let's be honest, most photographers on here, do not register their copyright, and that is the real problem. Here's why...

    In an infringement case you are going to be s.o.l. Defendants counsel will argue that you didn't care enough about your images to protect them, so fair use applies. Sure, they still used without your permission, but registration is key in winning a commercial infringement.

    The copyright law enforcement is getting watered down because so many photographers don't register their work. The internet being the wild west as to image thievery, and virtually no pushback from photographers who's images are being used willy-nilly (commercially or not), "fair use" is being used and argued more and more.

    Until todays professional photographers start acting like professionals and uphold professional standards, not only will this continue to get worse, they'll help destroy the entire photography business.

    There is NO excuse to not register your copyright. Not doing it, is simply laziness. I promise you, there will be day when you wish you had.

    Nobody has the right to use your images unless you let them. No different than using your car, house, or other property. Stand up and defend what's yours.

  5. A real kicker on this case is that the photo(s) was used on a site promoting a movie festival. Anybody in the movie industry should be much more sophisticated when it comes to Copyright issues. If the festival shows a movie that isn't licensed by the Copyright holder for public display, that could be a big issue. So, for the infringer to assert "Fair Use" should have been dismissed.

    From what has been written, it appears that the images were not registered with 3 months of first publication so the photographer is only eligible for compensatory damages. I'm sure that the photographer's attorney attempted to settle the case before filing. It's easier for them to just send out a settlement offer than to have to prepare a case and go to court. Even though the defendant "won", the decision is so far from the norm that they may wind up losing on appeal. I would have put money on the photographer winning the first round as would many other photographers given the comments.

    Even though it would be dangerous for another attorney to cite this case, it would be better to have it resolved on a much better foundation.

  6. While this decision might not set any kind of strong legal precedent, I am concerned about the precedent that might be set in the mind of the general public. As far as the image being taken down quickly when brought to the attention of the defendant, as I understand copyright law, the defendant is still liable for the usage they have made of the photo to date. Furthermore, even if the plaintiff could not establish a usage value for the photo from his own experience, stock photography rates from Getty and the like, for similar kinds of photos, should establish some reference for value.

  7. So what is the most expedient/efficient/optimal way to file for copyright on 200 images per day?

  8. I had a 25 year broker refuse to take down images, and the MLS refuse to take down images that were clearly used with out permission. The home owner (says) he bought them from his agent which lost the listing to another agent. After two days of talking they still left them up as if they didn't think I would raise Hades and call my atty. Only after they atty was involved did they cease. Such a lack of respect and professional courtes. blew me away. Kinda like the agent that leaves a $2mm listing appointment then complains your prices are too high.

    So what is the most expedient/efficient/optimal way to file for copyright on 250+ images per day? This seems like a paperwork nightmare that will drive up costs.

  9. I used to register all of my images. Now that the 750 image/registration is in place, I register my delivered images for RE work. The ones I didn't use will be different exposures of the same composition or me having to reshoot everything after kicking the tripod during a series I will be using to make a composite. Since I'm not "publishing" intermediates and don't deliver compositions that didn't work, chances are zero that those images will be infringed. I don't store anything online, so it's also unlikely that a "cloud" storage hack will expose unpublished images to the world.

    Would the second, third or forth frame of the same composition shot within seconds of the registered version be covered if the only change between them is shutter speed?

    @David Hall, if you send the MLS a properly formatted DMCA take down request and they don't take down the images, they become severely liable for the infringement. That's part of the Safe Harbor provisions that indemnifies content hosters against infringement claims since it would be impossible for them to vet every single submission. The broker could file a counter-claim, but that is considered a sworn statement and could nail their coffin shut in a suit. The homeowner bought a stolen piece of property if they claim they purchased the images from the original agent and you didn't grant that agent transfer rights.

    The process to register your Copyright is really easy. It takes longer the first time, but once you have filled out all of the basics, all you have to do next time is click "add me" and your information is automatically added. All you have to fill out is the title of the registration "week 241, 2018, RE photos" or something unique, upload a small set of .jpgs, pay and you are done. I just made another preset in Lightroom for "Copyright registration" and export the images to a folder. Since I am only registering my delivered images, it's around 20 per job or 35 jobs(ish) per registration. I'm not super busy so that's only once every 2 months or so. This year has been really slow so I have to make sure I get my registrations in before the 3 month deadline. I used to just register everything within the three months, but with the limit, I don't do that anymore.

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