Fed court Rules:find a pic on net and use without permission on a commercial website is fair use

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 the United States, whether or not a 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.

After considering these four factors, District Judge Claude M. Hilton of the Eastern District of Virginia concluded that the festival’s use of Brammer’s photo fit the criteria for fair use.

petapixel.com/2018/07/02/court-rules-copying-photos-found-on-internet-is-fair-use/

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The Court’s Opinion

Here’s a breakdown of what Hilton wrote about various criteria (you can read the entire 7-page ruling here):

The Use was Transformative and Non-Commercial

The usage was apparently okay because it was used on a commercial website in a non-commercial way, and that it was informational rather than expressive.

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.

The Use was “in Good Faith”

The use was in good faith because the company found it online, didn’t see that it was copyrighted, believed it was publicly available, and took it down when asked.

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 court decided that Brammer’s photo was more “factual” than “creative.”

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.

The Use was of a Previously Published Photo

Apparently the fact that the photo had previously been published online worked against Brammer.

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.

The Use was Only a Crop Rather Than the Whole

It seems cropping and using only a portion of a photo is helpful for fair use, even though photographers regularly crop photos to create new photos that stand alone as works.

[I]t is relevant that Violent Hues edited the photograph by cropping approximately half of the original photo from the version it used on its website. Violent Hues used no more of the photo than was necessary to convey the photo’s factual content and effectuate Violent Hues’ informational purpose. The Court thus finds that this factor also weighs in favor of fair use.

The Use Didn’t Hurt the Potential Market

The court doesn’t think there’s any evidence that Brammer was financially harmed by the photo’s use.

There is no evidence that Violent Hues’ use has had an adverse effect on the market for the photograph. Brammer attests that he has been compensated for the photo six times, including three physical print sales and three usage licenses. At least two of these sales occurred after Violent Hues’ alleged infringement began, demonstrating that Violent Hues’ use did not affect the market for the photo. Brammer further testified that he currently makes no effort to market the photo.

Additionally, Violent Hues’ transformative and non-commercial use of the photo undercuts a finding of adverse effect on the photo’s market: Violent Hues did not sell copies of the photo or generate any revenue from it. There can be no legitimate argument that Violent Hues has “usurp[ed] the market” by providing a market substitute for the photo, especially since Violent Hues only used approximately half of the photo on its website.

So… It’s Fair Use

“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,” Judge Hilton writes.

Reaction to the Ruling

As you might expect, there is strong disagreement with this court’s ruling.

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.”

“The Court [ignores] key components of the Copyright Act, disregards readily apparent facts, and once again totally botches the ‘transformative use’ test,” Carlisle writes.

Attorney David Kluft of the law firm Foley Hoag has also written up a rebuttal titled “No, Virginia, You Can’t Just Copy Stuff You Find On the Internet, Even if You Don’t Notice the Copyright Notice.”

“Despite what you might have read […] you cannot just use photos you find on the internet, even if you are genuinely unaware of their copyright status,” the firm writes. “Brammer is NOT a coupon for free photos for your website.”

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What a retard. They were not selling cropped copies of his picture or using it in or on a commercial product.

Also get fucked EU. With this ruling your meme copyright law more or less just got BTFO in a US Federal court and would probably not even be taken up by the supreme court for review. Good luck enforcing that anywhere but in Eurostan.

You're not capable of perceiving the intricasisies of a case like the you foreen speekin' trash

wat

are you high?

trips of why go beyond the c and d if it was complied with. one man's greed just fucked billions of artists. thanks Brammer.

All this time and money wasted over one fucking picture. The depths of Human stupidity must be endless.

...

too be fair you have to have a fairly high IQ to perceive the intricasisies of a case like the you foreen speekin' trash

This is irritating because long-exposure night-photography is one of the few forms of photography left where there is actual skill and technical knowledge of F-stop and field-of-focus to calculate exposure time without the camera doing everything for you or being a lazy hipster and going "I'll fix it in post" like with false-HDR images.

I do not understand people.

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This is your mind on the American legal system

TUMBLR ARTISTS AND TWITTER ATTENTION WHORES

BTFO
T
F
O

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HAHAHAHAHAHAHAHAHAHAHAHAHAHA
SHARING TRUTH IS PROTECTED USE OF INTERWEBZ
STUPID jEWS BTFO

You do no own things because they are in public spaces nigger.
What people look, sound, and move like are their sources and methods for their private life.
This is the next thing to get fixed.
Sorry pedographer, no pics for you.

No but it is abused.
Copyright protections are incentive to make public after so many years of monopoly.
However, they should only be upheld if found that another entity is either selling your shit as their shit or pretending to be, or be associated with, your entity.

Watermarks are easy to erase. Many programs in the market to do that. but it would be pretty easy to make the case that it had the watermark when it was found, and by deliberately removing it they can't really claim they didn't know it belonged to someone.

Amerifat hasn't heard of the MPAA or the RIAA because he's fucking 10 years old and their shit was flying around before he was born.
Cancer

So its legal to use someone else's OC? What if they say OC DO NOT STEAL what happens then?

Do you have brain damage?

Then you kill them, problem solved.

The issue is he sued after they removed it. It would be fine if they just removed it from the DMCA, but this dumb jewish cunt got the bright idea to try and sue AFTER they followed through on the DMCA.

user did you actually just copy one of the comments on that news link word-for-word?

Look at you moving the goal posts already. It's not about whether you "own" whatever you see in public, it's about whether you can expect privacy when you're in public and whether you can take pictures of things in public.

This literally makes no sense. You don't own the photons that bounce off your fat face on the off chance you stumble outside to check your habitually empty mailbox. You don't own the air that reverberates the disgusting belches that emanate from your cum-crusted lips. And you can't prevent me from sensing and capturing your disturbance of the sun's photons or the planets' air pressure. You stupid faggot.

feels good man

I'm actually quite familiar with copyright law, which is why I have the luxury of informing you that this isn't newsworthy…….

Absolutely nothing changed

The judge didn't make a ruling rich changed or altered existing law

Therefore, this isn't news

And furthermore, you're a faggot

exactly WHAT feels so good to you?

Your ability to demonstrate I decided lack of understanding of copyright law?

…. Is that what feels good?

Or was it the sensation of public ridicule and embarrassment from making a fool out of yourself?

….. Was that the thing that felt good?

I'm going to take a shot in the dark, and guess that what really feels good to you is having a warm set of testicles bobbing on your lower face…..

One thing was made perfectly clear from your post:

You're the type of person who has absolutely no natural Talent

That's why you don't understand the concept and you're bitter and resentful towards anybody who actually does have natural Talent

You are both correct and simultaneously mistaken…..

You are correct because your statement was technically correct

But you are mistaken because the judge in this civil matter used his discretion to rule in favor of the defendant

It could have gone either way, and in a majority of similar cases, the judge would have ruled in favor of the plaintiff, but the defendant did not use the intellectual property in a commercial sense, meaning that there was no loss or damages

Isn't it fascinating how you can be right and wrong at the same time?

In America, you have the right to be wrong…… And it's nice to see that you're exercising that right

that judge is an idiot. even using as much as 10% percent of an original work is violating copyright. nevermind all the other parameters that were broken. this will be overturned quickly and that judge will probably lose his job.

What a fucking joke. If photography was a multi-million dollar industry like the movie industry, they'd back them up. They only back up where the money is. Bunch of bullshit. Copyright law should be abolished and people should be made fun of for wasting time, resources, and manpower to produce vain entertainment when there is a platform that can infinitely reproduce it. When a lay man does something like that they get told they should have know better. When dick sucking faggots do it and happen to hold a label or some other non-sense, uncle same sucks their dick and tell us not to be so stupid. What a pitiful country.

thinking a judge would 'lose his job''' for ruling in a courtroom

Yes, Copyright allows people to safely trade. If a factory can own their property but you can't own your design, the only contract you can get is an unfair one. Copyleft faggots don't get this. Photographers and fan artists seem to be the only idiots upset about random incidental usage of their art that in no way costs them money. "wahhh it's copyright infringement if you use my kirby shitpost as an avatar (a design i stole from someone else) wahh"

I am a supervillain then, for I have stolen various monuments by photographing them.
That is not how a reasonable expectation of privacy works. To expect privacy, you must go someplace private, as opposed to public spaces such as sidewalks, festivals, etc.
fuck your strawman and neck yourself NSA


nobody's interested in your opinions, scrotumfaced manlet failure

And people ask me why I watermark all my photos…

This kills the google.
This kills the facebook.
Remember: EVERY SINGLE PICTURE you upload to either you are giving them complete and full ownership of the copyright on those pictures. That's irrelevant now.

Hey OP.
Why the clickbait lie in the title?