U.S. Appeals Court rules you CAN’T just take images off the web and reuse them under “Fair Use”
A controversial court ruling in July 2018 that said it was ok to just take photos from the web and reuse them has been overturned by the U.S. Court of Appeals for the Fourth Circuit.
The previous ruling said that Violent Hues Productions use of photographer Russel Brammer’s image fell under “Fair Use” and that it was “transformative”, denying his infringement claim. But this decision has now been reversed.
Brammer sued Violent Hues Productions in 2017 for unauthorised use of a timelapse photograph of the Adams Morgan neighbourhood of Washington, DC. VHP used the photo on a website intended for festival attendees to provide information on accommodation, travel and other things to do in the northern Virginia & Washington, DC area.
The lower court dismissed the claim stating that an image need not be altered in order to be classed as “transformative” and fall under Fair Use. They said that Brammer’s reason for creating the image was “promotional and expressive”, and that VHP’s usage was “informational”.
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 non-commercial, because the photo was not used to advertise a product or generate revenue.
– Eastern District of Virginia judge’s original ruling
That ruling sparked a lot of controversy within both photography and legal communities. Brammer’s attorney said at the time of the ruling that the lower court decision “is opening the door that any use, other than my client’s use, is a fair use…that’s not close to the scope of fair use”.
Fortunately, they have smarter people running the U.S. Court of Appeals, who turned over the lower court’s decision. They deemed that it was commercial use, as it was used to promote the content regarding a commercial event.
What [the defendant] Violent Hues did was publish a tourism guide for a commercial event and include the Photo to make the end product more visually interesting. Such a use would not constitute fair use when done in print, and it does not constitute fair use on the Internet.
If the ordinary commercial use of stock photography constituted fair use, professional photographers would have little financial incentive to produce their work.
– U.S. Court of Appeals
So, that’s a pretty emphatic “No, you can’t just take stuff off the web and use it as you see fit”. They said that VHP’s use of hte image “shows no apaprent transformation”, and that cropping it “does not alter the original with ‘new expression, meaning or message’”.
Violent Hues’ sole claim to transformation is that its secondary use of the Photo provided film festival attendees with ‘information’… But such a use does not necessarily create a new function or meaning that expands human thought; if this were so, virtually all illustrative uses of photography would qualify as transformative.
– U.S. Court of Appeals
After Brammer’s victory in this appeal, the court sent the case back to the lower court for further proceedings.
[via PDN Pulse]
John Aldred is a photographer with over 20 years of experience in the portrait and commercial worlds. He is based in Scotland and has been an early adopter – and occasional beta tester – of almost every digital imaging technology in that time. As well as his creative visual work, John uses 3D printing, electronics and programming to create his own photography and filmmaking tools and consults for a number of brands across the industry.