Does using a photo from the internet constitute fair use?

As reported by Newsweek, PetaPixel, and Fstoppers, a Virginia federal court recently ruled that using an image on the internet without permission may constitute fair use (as opposed to copyright infringement).

The facts of the case, Brammer v. Violent Hues Productions LLC, are rather straightforward. A photographer by the name of Russell Brammer uploaded his long-exposure photograph of Adams Morgan, a neighbourhood in Washington, D.C., to several websites, including Flickr. Violent Hues came across the photo and cropped it before uploading it to its website promoting the Northern Virginia Film Festival. Brammer had noted on Flickr that all rights to the photo were reserved and sent a letter to Violent Hues, which then immediately removed the photo. Brammer followed up with a lawsuit against Violent Hues for copyright infringement.

Judge Hilton ruled that Violent Hues’s use of the photograph constituted fair use. He found that the use was transformative and non-commercial because Violent Hues was using the photo for informational purposes whereas Brammer had used it for expressive purposes and because the use by Violent Hues was not to generate revenue. Further, Judge Hilton found that the immediate removal of the photograph showed good faith by Violent Hues and that the photo was a “factual” photo that had been published on other sites previously, sometimes without copyright notices. Finally, Judge Hilton considered that the photo had been cropped so only a part of the original image was used by Violent Hues and determined that Brammer was not financially harmed by Violent Hues’s use.

The decision has drawn criticism from some copyright experts.

Stephen Carlisle of Nova Southeastern University is eager to see the decision overturned. Carlisle published an in-depth critique of the decision. He notes that, among other errors, Judge Hilton failed to understand that good faith is an element to consider in damages, but has no bearing on a finding of liability. Further, whether the copyright holder has placed a copyright notice on their work is irrelevant, because copyright protection is owed the moment the artistic work is placed in tangible media. In addition, Carlisle notes that every photograph can be considered a “factual” one in the sense that it is capturing how something factually looks in that moment, and that Judge Hilton erred in his understanding of financial harm to Brammer.

The Court’s ruling raises interesting questions, such as whether memes can be considered fair use of copyrighted material, in the sense that they offer a commentary or criticism to the original work. The analysis could also be complicated by new copyright legislation expected to be introduced by the European Parliament this fall.

Brammer has filed an appeal.

Author: Daniela Cerrone, 2018 Summer Student-at-law