Virginia court rules that stealing photographs for commercial websites is "fair use"

Well, this one has some potentially scary consequences for photographers rights, as well as other copyright holders. The case involves an image created by photographer Russell Brammer in 2011, stolen in 2016, and then taken, cropped and used by Violent Hues Productions, LLC on their website to promote a film festival.

The logic of this is so complexly stupid that it’s going to take a minute to try and explain.

2011 – Photographer Russell Brammer shoots a timelapse photograph in Washington, D. C.
2016 – Brammer applies for copyright registration on the image
2016 – The image is discovered on the web by VHP, taken, cropped, and posted on their website to help promote a film festival
2017 – Brammer sends a cease & desist letter to VHP
2017 – VHP remove the image from their website
2017 – Brammer pursues VHP in court for copyright infringement
2017 – Defendant claims “fair use”
2018 – Judge agrees with defendant that the work is “transformative” and “fair use”

Brammer pursued VHP on two counts. The first being the infringement itself, the second beg for alteration of the image and removal of copyright information. Now a judge in the Eastern District of Virginia has ruled that photographs are “factual depictions”, not creative, and that copying them, apparently even for commercial use, falls under “fair use”.

The problem though, according to Nova Southeastern University, that the court completely ignored key components of the Copyright Act. They also seem to have completely misunderstood the meaning of “transformative use”. According to the court opinion document…

The Fourth Circuit has held that “[t]he use of a copyrighted work need not alter or augment the work to be transformative. Rather, it can be transformative in function or purpose without altering or actually adding to the original work.”

Essentially they’re saying that simply using an image in a different context, even if you don’t change a thing in the image itself, makes it transformative, thus “fair use”. Well, doesn’t that pretty much make all stock photography a free-for-all? I mean, there the same images are used in all kinds of different contexts.

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.

Yes, that’s right, this image used on a commercial website to promote a commercial film festival is non-commercial use, according to the judge.

Oh yeah, and it seems “I found it on the web” is a valid legal excuse for stealing images now. Interns and “the web guy” the world over can now breathe a collective sigh of relief.

In addition to being transformative and non-commercial, 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.

Law Fuel reports that even though “good faith” and “innocent intent” may actually determine how much a party is liable for, they are not admissible as evidence of non-infringement or fair use. So, legally, ignorance is no excuse – although this judge seems to think otherwise.

It’s a crazy one to try and wrap your head around just what this judge might have been thinking. But if you want to read more about the case…

There’s no word yet on whether or not Brammer will appeal this ruling, although I highly suspect that he will, as it may have dire consequences for copyright everywhere if left unchallenged.

[via Nova Southeastern University]

W Douglas LeBlanc

The Judge at that Virginia courtroom can suck my wully. We reject this ruling utterly.
Alan Gamble

I’m sure big corporations won’t abuse this at all -.-
Franco Kailsan

Btw. thanks for this gorgeous pix of a meat tenderizer.
Michael Estwik

Is there anything we can steal from this court, I mean in the name of fair use?
Jeffrey Dull

APPEAL!!!
Chris Lapointe

Just when you thought legal bullshit couldn’t get any worse.
Mark Nycz

its hard to comment on this without seeing the before and after images. If they did resample an image but changed it enough then I could see it being more in the legal area…hard to say tho
- Aankhen
  
  Per the article, the verdict doesn’t rely on how much the image changed. The verdict is based on the idea that using it in a different context is transformative, that it’s natural to expect an image to not be copyrighted if it’s available online without a notice in close proximity, and that the commercial use of this photo to promote a commercial film was non-commercial. I don’t think it’s hard to say at all.
Lee Ballard

Ahhhhh Virginia, forward thinking as ever!
Andrew Dingman

I’m speechless. Collapsing law, collapsing values, the list goes on. I took civic law and this man was due restitution for copyright infringement, plain and simple.
- Sandy Bruce
  
  Seemed pretty straight forward to me and I am not a lawyer.
Darrell Larose

I hope this will be overthrown by a higher court.
Clayton Young

2017 – Brammer sends a cease & desist letter to VHP
2017 – VHP remove the image from their website
2017 – Brammer pursues VHP in court for copyright infringement

I cant say i agree with him taking them to court after they followed the orders of the C&D letter. Of course it doesnt show how long they kept the image up after said letter was received. Could have been several months of VHP hemming and hawing about it.

What ever the circumstances i hope he appeals this decision because it is a bad call on the judges part.
- Kaouthia
  
  Well, the C&D just tells them to stop using it as of right now. It does not excuse prior usage. And settling for prior usage does not typically include future usage.
  
  So, it’s generally the correct process.
  
  1) Tell them to stop using it
  2) Bill them for the use they’ve already had.
Terry Rowe

They should appeal!
Sandy Bruce

Can we donate to the appeal fund? They can start using pics of our kids or whatever else you post for whatever they want. Hell to the no!
Judy Kirkpatrick

who is next artists?
photography is a type of art.They should definitely appeal and others who could later be effected by this ruling should sign petitions supporting them.