Court Rules The Usage Of Photo Found Online, Without Permission, As ‘Fair Use’

Image via Shutterstock

The Virginia federal court has announced a piece of news that many photographers won't be thrilled to hear.

The court has declared that using a photo that has been uploaded to the internet without the photographer's permission and using it, even on a commercial ground, can be considered fair use.

The decision had stemmed from a copyright battle between photographer Russell Brammer and the Northern Virgin Film Festival, where the photographer's image was used without permission.

The long exposure photo, which was shot in Washington DC, belongs to Brammer and was unfortunately used by Northern Virgin Film Festival on its website, under its page guide on ‘Things To Do' in DC, back in 2016.

Brammer immediately issued a cease-and-desist before the company took down the photo as requested. The photographer then proceeded to sue for copyright infringement, but the company behind Northern Virgin Film Festival, Violent Hues Production, claimed that the image was in fair use.

Brammer took action on two accounts, the first being the infringement of the company's use of the image without his permission, and the second being that it had cropped of his image and removed it of copyright information.

Multiple factors are taken into account to ensure that an image is considered “fair use” in the US.

The copyrighted material, used without permission, can be considered “fair use” if it satisfies four main factors. The first being the purpose of the image used, whether or not it is transformative and if it is for commercial or non-commercial use, the second is the nature behind the protected image in question, the third being how much its usage impacts the market and/or the value of the work, and lastly, how much of the image has been used.

According to the court, the photograph was merely a “factual depiction” and that the festival's act was considered fair use.

Court District Judge Claude M. Hilton said that the image uploaded on the commercial website was informational as opposed to being expressive, as it provides facts to festival attendees. It is also considered “factual”, since it depicts a certain location, as opposed to being “creative.”

At the time, the company did not know that it was copyrighted and thought it publicly available. The image was found to have been published to other websites as early as 2012, with one instance lacking any specific indication that it was copyrighted. Rammer too had no evidence to show that he was financially harmed when the company had used the photo.

The news has drawn concern from many photographers, including Nova Southeastern University, who added that the court has ignored many other factors under the ‘Copyright Act' to conclude its decision.

To read more details on this case, click here.

[via Fstoppers, opening image via Shutterstock]

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