The whole issue of using images online is a bit unclear. Or is it just me? We hear stories every week where we can use them, and then we can’t the next. So which is it? The most recent battle involves a photographer and a Film Festival. The Film Festival used a copyrighted photo from the Internet without permission for a commercial website. A federal court in Virginia has ruled that this particular use of the image is considered fair.After discovering one of his images, a long exposure taken in Washington, D.C., was being used as part of the guide of local amenities on the website of Northern Virginia Film Festival in 2016, photographer Russell Brammer issued a cease and desist. The company cooperated and removed the photo because of this request. However, Brammer persisted and sued for copyright infringement. But the company (Violent Hues Productions) claimed that it 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.
When it comes to these kinds of situations, it makes you wonder who is right? There are a number of factors that need to be looked at when considered fair use in the United States. Those factors include – what is the image being used for? Is it transformative? How much of the photo is being used? And whether or not the usage affects the value of the original works. The judge, as you know, deemed the photo go be fair use on the basis that the photographs are “factual depictions”. More specifically, the judge 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 was 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.
All of this is extremely interesting because now, there are people who are saying that the Court ignore certain aspects of the Copyright Act. When I think about what this from the bigger perspective, I often wonder what kind of impact this could have on photographers. I’m not a lawyer, so I can’t make a determination based on how the judge ruled. If he did ignore parts of the Copyright Act, is there something that can be done to “fix it”? Meaning, can Brammer appeal? Or is what’s done is done? Either way, I find this case to be fascinating and I’m looking forward to how this plays out with other cases in the future.