The question about bloggers-using-images-from-the-internet is by no means a new debate but the latest log on this fire is Russell Brammer v. Violent Hues Productions, LLC (E.D. Va. June 11, 2018). This case, which is now on appeal, certainly comes to the aid of bloggers, website owners, and social media mavens who use images on their site/posts. Let’s unpack whether this latest case is going to break the internet or our copyright laws.
A photographer (Brammer) created a time-lapse image of Adams Morgan (a hipster section of Washington, DC). Let’s pause for a moment and give Mr. Brammer a little plug in the form of a hyperlink. Violent Hues is a production company (for balance, here’s your hyperlink) which organized the Northern Virginia Film Festival and then, it appears, created a second website which was a “reference guide providing information for filmmakers and other attendees…” Admittedly, it is hard to tell from the order, but it is my reading that this “reference guide” site was separate from whatever site was primarily promoting the festival. Violent Hues cropped Brammer’s picture and used it on this “reference guide” site. When Brammer’s counsel sent a cease-and-desist letter, Violent Hues’ owner removed the image; when Brammer later sued, the owner claimed that he was unaware that the image was copyrighted.
Brammer sued and Violent Hues moved for, and obtained, summary judgment in their favor since Judge Claude M. Hilton ruled that it was “fair use” under copyright law. As noted above, this is now on appeal with the Fourth Circuit.
There are four elements to the Fair Use exemption and the court found each one applied. Violent Hues’ use (1) was transformative, in good faith, and informational and not commercial; (2) was a factual depiction which had previously been published without a copyright indicator; (3) involved a cropped version only using “no more of the photo was necessary to convey the photo’s factual content”; and (4) there was no evidence of an adverse market effect.
Again, the order is here.
Will it break the internet or copyright laws? Not yet, since this is a District Court (trial level) order from the Eastern District of Virgina (so it would likely be persuasive but not controlling authority depending on your location). An appellate opinion, if issued, would have greater authority.
A tip of the hat to PetaPixel’s comprehensive article, Court Rules Copying Photos Found on Internet is Fair Use.
Florida lawyer, Stephen Carlisle of Nova Southeastern’s Office of Copyright, added further legal analysis in Court Rules Photographs are ‘Factual Depictions’; Copying Them Is Fair Use. He also points out another copyright case, Philpot v. Media Research Center, which he describes as “one of the most off-base, head scratching decisions ever rendered on the issue of transformative use.” David’s work is solid
even though he uses footnotes and non-hyperlinked citations.
A suggestion for bloggers and internet mavens who are looking to use images off the internet: Do a Google Image search for your term. It will return a number of images. Then hit “Tools” which will appear under the search bar. This will reveal a new set of filters under the search bar. Select “usage rights” and “labeled for reuse” or whichever filter fits. Obviously, this is not foolproof in terms of confirming copyrights, so it is a good idea to check the source of the image and even contact them if there’s a question. Also give them credit. Like I did below.