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On Copyright and Using Photos You Found on the Internet
Use of this copyrighted photo is covered by fair use. So there.
A Federal court recently ruled that the use of a photo some guy found on the Internet was covered by fair use. The newsworthy bit isn’t that you can now go grabbing photos willy-nilly, it’s that anyone at all got off by claiming fair use on an Internet photo. It makes for a pretty good vehicle for considering what fair use means and what it ought to mean. One quick note before I get into it: this article is really excellent and I scalped most of my links off of them.
Briefly, the facts:
- A fellow named Brammer took a photo of the Adams Morgan neighborhood of D.C. (That picture I used with this article. Fair use!)
- Violent Hues, a music festival, found Brammer’s picture online. They recropped it and used it on their website.
- Brammer found his copyrighted picture used without his consent. He sends them a cease-and-desist.
- Violent Hues immediately takes down the picture in question.
- Brammer sues them for copyright infringement.
- Violent Hues claims fair use.
Okay, Brammer is obviously a jerk, but that ought to have no impact on the outcome of the case. The important thing is the question of fair use. What is fair use?
The Law:
[…] [T]he fair use of a copyrighted work, […], for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
[…]
Does that apply to the photo? Let’s take the questions one-by-one:
The Purpose and Character of the Use
To quote from the opinion:
When examining the first factor, the purpose and character of the use, Fourth Circuit precedent provides two related factors for the court to consider: (1) “whether the new work is transformative,” and (2) “the extent to which the use serves commercial purpose.”
I find that word “transformative” to be difficult. What does it mean in this context? Brammer was making art. Violent Hues was using it to illustrate a website. They had the photo in a “things to do in the area” section. The court rules that the use is transformative because Brammer’s purpose in capturing the photo was “promotional and expressive” where the music festival’s use was “informational”. More difficult words.
Brammer makes art and he wants to sell art. Violent Hues wants to say “while you’re visiting you can go look at neat places like this.” I think that’s how the court is arguing it, it’s not spelled out very explicitly. If it’s transformative it’s because they’re transforming it from “look at an output of my creativity” to “look at a neat looking place”. I believe that’s what the court is arguing. One opinion I read about the case claims they botched that test, but doesn’t elaborate on what it ought to mean. I don’t understand the word and the implications in this context to judge myself.
Okay, and does it serve a commercial purpose? The court argues that it’s not because it’s not used to advertise a product or generate revenue. That guy I just linked argued that they’re promoting their festival, and that they’re including that section in their site to attract festival-goers, and that they presumably intend to get revenue from ticket sales to festival-goers.
In judging the commercial nature of the usage I’m inclined to side with the court. In light of the arguments about Obamacare, one ought to ask if there’s any activity that isn’t economic at some level. I don’t think you can answer that in the negative without inviting a despotic state. While this is obviously not at that level try and find a case of “fair use” that doesn’t count as commercial activity when you describe it that way.
The court then goes on to discuss Violent Hues using the photo in good faith. While I’m inclined to believe they used it in good faith, I don’t see how that’s relevant to the question of fair use. Whether or not the person using the copyrighted work knows it was copyrighted wasn’t addressed in the statue, and even if it was then given the nature of copyright law the presumption ought to be that an image is under copyright. Moving along.
The nature of the copyrighted work
It’s more likely to be fair use when you’re citing non-fiction, less likely when it’s a creative product, and more likely if it’s a creative product used for historical facts. These all come out of cases sited in the opinion. Fair enough.
The photo is creative; nobody does a time exposure photo to make an exact representation. It’s non-fiction in that it’s a photograph of a real thing. As argued in the first section the court seems to think that it’s being used for it’s descriptive purpose: “This is a cool place you can visit” rather than “This is a cool thing. Check out my cool photograph.”
I don’t like using this reasoning at all on a photograph. To the extent that a photograph is art it’s presenting an idealized or stylized depiction of a place. To say that you’re using the photo for it’s informational content misses the point. The street doesn’t have those great streaks of light on it unless you track car lights over time. You use that photo to convey a certain impression about the place, that it’s got cool and interesting things going on. That message has to come from the artistic content of the photo. Violent Hues says “This is a cool looking photo, I’ll use it on my website”, they’re only using it because it’s cool looking, and it’s precisely that artistic content that they’re trying to use. If photography is an art form at all then you’ve got to respect it as art.
The court also argues “The scope of fair use is broadened when a copyrighted work has been previously published.”, which Brammer had. If you do a google image search on “Adams Morgan neighborhood at night” then the second picture that comes up is the one I attached at the top of this article. No indication on the site (a real estate company, presumably one who leased the image from Brammer) that the image is copyrighted. I don’t see how the previously published bit has any relevance to fair use though.
The amount of the portion used in relation to the whole
To quote from the opinion:
[…] Violent Hues edited the photograph by cropping approximately half of the original photo from the version it used on its website. Violent Hues used no more of the photo than was necessary to convey the photo’s factual content and effectuate Violent Hues’ informational purpose. […]
This is odd. Cropping a photo is different than taking a quote out of an article. It reframes the subject of the photo. It doesn’t really change the nature of the work. Violent Hues cropped the photo presumably to give it a wider aspect ratio. They’re still using the photo, they’re just fitting it into a longer rectangular box. But since the law was written with text in mind the fact that they cropped it works like quoting. Stupid, but a correct reading of the law.
The effect of the use upon the potential market
The court found no evidence that Violet Hues’ use of the photo affected Brammer’s sales. Fair enough; it’s not like they were selling prints of it. But going back to that guy again:
This misses the point. The point as expressed by numerous other courts is: if everyone were able to do what the defendants did, would this adversely affect the market? In the case of BWP Media USA, Inc v. Gossip Cop Media Inc., also involving the unlicensed copying of photographs, the District Court for the Southern District of New York held:
“[A]llowing Defendant to copy Plaintiff’s images directly from third-party licensees and to frame that copying as ‘news reporting,’ when Defendant’s articles provide no comment on the licensees’ use of the respective photographs — and thus, on the facts of this case, add no additional meaning or expression to those photographs — would effectively allow Plaintiff to license its images only once; after an initial licensee published the photo, third parties could then copy it with impunity.”
If the standard then is “what if everybody did it?” then yeah, it’d affect the potential market. Brammar sold three prints and licensed the photo three times. If everybody did it he would have licensed the photo once and simple math tells you that his market would be smaller. Should that be the standard though? Notwithstanding the cited opinion, the clear text of the statue indicates that it’s talking about a single use. They’re not slapping the picture on T-shirts and selling ’em. Insofar as it’s possible they’re quoting the image.
Based on those four tests the court found the use of the photo covered under fair use. I’m figuring there’s a good chance that it’ll be reversed upon appeal. But to use the Internet’s most common disclaimer, I am not a lawyer. A thorough consideration of the case in question does provide an excellent springboard into this question:
What Should Fair Use Look Like for Photographs?
Perhaps it would be better to ask if there exists such a thing as a way to quote a photograph and be covered under fair use. Is there any sort of photograph that isn’t artistic in nature? Supposing Mr. Brammar had taken that photo without leaving the shutter open, and it’s as factual an image of that street as he can make. Legally speaking it’s still a work of art. He still chose to aim the camera at that exact angle. If you crop it it’s still his depiction of that street. I really don’t think that whether you leave the photo cropped or uncropped ought to matter.
Should there be fair use for photographs? If cropping it doesn’t matter then any time you quote a photo like that you’re quoting the whole of an artistic work and thus are copying it. Should there ever be a case where that’s permissible?
If there is it ought to be what Violent Hues was doing. Is it really possible to quote an artistic work for informational purposes? If I were citing a novel from 1948 to discuss their perception of issues at the time, sure. If I were trying to give a depiction of daily life from 1948 I might use a picture taken in 1948. If I want to show you what the Adams Morgan neighborhood looks like I’ll use a picture of the Adams Morgan neighborhood. If every photo is artistic then it follows that any photo is artistic and using a snazzy-looking one like Mr. Brammar’s is just as justifiable as taking a Google Maps picture.
On the other hand, what happens if they can’t use anyone’s photograph? Then they could have gone out and photographed the area themselves. I mean they’re right there. It’s more trouble when you think of that hypothetical photo from 1948; completing my time machine will put me to some expense.
What about non-commercial use? See that nifty avatar I have? I didn’t draw the original faceless hat-tipper, although I did add the goatee. Because I could conceivably be expecting to monetize my Ricochet posts (is the Federalist still hiring?) then is that little guy not covered by fair use? I’ve already said it, but I’d prefer to have commercial activity narrowly defined. Selling the picture yeah. Using the picture incidentally to a commercial operation should qualify for fair use.
I don’t think there’s a way to get around test three of fair use. I mean, there’s cropping more than half the photo which legally seems to be correct, but again that’s stupid and the law shouldn’t allow that. If you nixed that option then I don’t see any way to get through point three. You miss point three, you fail the test, you can’t use photographs under fair use. That would apply regardless of artistic or informational or non-commercial use.
But to revolve back to the opening question, we’re not discussing what the law actually says anymore, we’re discussing what it ought to say. What should fair use on photographs look like?
Published in Law
“You can’t stop the signal, Mal.”
I kinda developed my own ethics on this. If my purpose for the art is to make money or pass it off as my creative work in any way, then I purchase the work.
I do a lot of crafty things at home for organization (I need it in boat loads) and I use a lot of mommy blogs for ideas on chore charts, reading games, etc. Sometimes, what they have on offer doesn’t suit perfectly, but I have the skill set to set up my own. I will use stock clip art for these things, but because it is my own private use and I’m not posting it on my own mommy blog to pass as my own work, I don’t really feel much compulsion to purchase it just so I can play a silly card game with my 3 year old or illustrate chores for my non-reading 1st grader.
However, if I were developing a website to sell my tatting or whatever else I wanted to do, or I was going to post a project on pinterest, or sell this card game to other parents, I would purchase the photos in use.
When it comes to blogging for free? If I’m not making money on it, I feel no compulsion to purchase readily available web pictures on a brief post for illustrative purposes. The pictures used in the design would need to be purchased.
Just a complete layman’s opinion, but I think this example was clearly not fair use.
I don’t understand why it’s relevant to go into such detail about whether the original photograph was “art” or “information”, or how much of it was cropped: isn’t it more about the intended use? And that intended use, to my eyes, clearly does not belong to any of the categories “criticism, comment, news reporting, teaching…, scholarship, or research”. It was clearly used for marketing purposes. Regardless of whether the event was non-profit or non-non-profit, none of the above categories was covered.
Nonetheless, there is also a point at which laws become difficult to enforce and common sense needs to prevail.
If I accidentally leave a $100 bill lying visibly overnight on the passenger seat of my locked car in my driveway, I have an expectation that nobody will break my window to get it, and I would probably report it to the police if it were stolen. But I leave that same $100 bill on the edge of my driveway (still on my property) weighted down by a small rock that says “This is my property, please don’t take this”, I have only myself to blame if the bill is gone the next day, even though it was, in a sense, secured on my property.
If copyright holders don’t want their intellectual property reproduced endlessly, they shouldn’t be leaving it in a position where it can be appropriated as easily as the $100 bill in the driveway. Especially in the case of photos, there are plenty of security measures available that make reproduction enough of a hassle to eliminate 95% of misappropriations such as the one under discussion here.
The festival pulled the photo when the owner complained about its use? Correct? Then what was the problem? The copy right worked as it should have. It is the responsibility of the copy right holder to police his property and make sure it isn’t being used in some way he finds disagreeable. They grabbed an image off the internet, when its owner informed them it was private property and not commons they ceased using it. His right to complain should have ended right there. Had they continued to use it than he should have been allowed to sue. To me it seems this whole case was ridiculous to begin with. If you can’t prove bad faith in the use of a copyrighted material you shouldn’t have a case.
Yeah, I left that section in the quoted law on purpose. None of the other guys commenting on the case mentioned it, but it does seem relevant, doesn’t it? I assume that the question of “Purposes such as” has been argued to include “convey factual information” or some such, which the judges and lawyers on down understood was what the whole “informational” bit was about. But hey, I’m not a guild member so I don’t know.
Could you enlighten me on this? Any security measure that allows the photo to be displayed, it can still be screenshotted and saved that way. Maybe lower quality or some such, and anyone going to that extent is obviously acting in bad faith. I’m not convinced it is possible to secure photos and display them on the internet.
Secondarily, the photographer licensed the photo off to a couple groups. If that real estate company displayed the photo in a non-secure manner and the photographer found someone else using it, then he sues the real estate company for not taking proper care of his property?
Yeah, if I were Mr. Brammer I would have ended the affair when Violent Hues took down the photo. Legally though that doesn’t enter into the question of fair use.
I’m no expert either, but I know watermarks are an easy way around the screenshot option. An acquaintance of mine runs a blog with lots of proprietary images that is highly read and cited, and his images pop up on other pages all over the internet with the watermark still on them (so they’re still being taken, but at least his site gets more hits).
I’m sure there’s some way to remove them, but like most house locks, it’s not about creating uncrackable technology, it’s about making things just difficult enough that a) most potential infringers will look elsewhere, and b) it takes enough deliberate effort to defeat that nobody can claim afterwards that they were acting in good faith.
As to policing sub-licensees, I don’t really know either (since they’re unlikely to accept a watermark).
Watermarks and lower-than-native resolution previews are the usual ways professional photographers protect their works at 500px. Watermarks are sometimes vulnerable to cropping, but there are corner-only watermarks and full-image masks. One company I know uses diagonal lines across the full image. If a magazine or other client buys the image, then preview is removed from marketing platforms like 500px and the client is provided the full clean image.
Only two points matter in my mind. Does the original artist/photographer express or imply interest in profiting from the image? Is the image originally available in a way that might imply the maker wants to be credited?
I believe copyrights should be much more limited in duration than they are today. Use it or lose it. But while a copyright is active the work’s profitability should be the law’s primary concern.
You raise a great conundrum between one use and many. Perhaps results should be the focus. That is, there is no legal restriction to the number of fair uses, but a person may be liable if one’s action clearly enables such common reproduction as threatens the work’s profitability. I don’t know — just thinking out loud.
On the other hand, there are many situations in which a producer will permit reproduction (commercial or non-commercial, as expressed) only when cited as the creator. That intent can be known by expressed consent or by implication of the setting in which the original image was made public. When in doubt, a caption or note about the author is polite, at least.
Definitely, this is an area of law which demands prudential judgments of each case.
@kevincreighton might be the man to ask. I have sold prints, but I think he has sold licenses to his photography.
I’ve wanted my mother to do this. Stock photo sites are a great way for hobbyists to protect their work, have it seen, and build a reputation, while making some money from their hobby.
I know there are movie posters where copyrights to photos were outright bought from the photographer via stock photo sites… it gives exclusive rights to the purchaser and the creator can not sell the photo again to someone else.
Okay, so what about that real estate company? The image comes with no credits; it doesn’t lead back to the photographer at all. That’s fine if the license agreement allows for it.
Supposing I’m the festival; I want a good picture, I find one on Google. No copyright on the site, no tracing it back to the original photographer, short of hiring a private detective. Does the real estate company’s use of it as an example image of the neighborhood count as profiting from the photo, or do they have to actively be selling prints? Is a credit to the real estate company sufficient if they got the photo from someone else?
On those lines I should probably @RightAngles too, even though she’s presently inactive. She’s also sold stock photography.
Beautiful shot–18th and Columbia N.W. With a little more detail one might be able to make out the gentlemen who stand in front of recently vacated on street parking spaces, “holding” them for the next person with a five or ten in hand.
Funny how that detail didn’t make the real estate listings.
What I do here is a transformative work. I use a still from a movie and put other folks heads on them and it’s a transformed and reinterpretated work.
When the AP and Shepard Fairey tangled for two years over the Obama “Hope” poster it ended with an out-of-court settlement so there wasn’t any resolution on commercial use of news photos.
Thanks; that makes a lot of sense. In that sense I disagree with the court that the changes Violent Hues made to the photo were transformative enough to pass that test, but I sympathize with the poor black robe who has to decide “Is the change artistic enough?”
I think I see Madam’s Organ, though.
I’m ba-a-a-ack!
I don’t find this case to be fair use. It’s the result of the digital age and “I found it on the internet so it’s free!” The fact that people think the photographer is a jerk says it all. The career of photographer is dying because of this stuff. Google Images is the bane of their existence, not to mention microstock, which has pretty much killed “Rights Managed (RM)” stock. Amateurs and hobbyists who don’t know an F stop from a bus stop are participating in microstock where the photographer gets as little as 25 cents per download.
I’ve found my work on blogs with the Fotolia (stock agency) watermark still on it, so I know they stole it. And once a professional graphic designer who knew better took a screen shot of my illustration, ran it through Adobe Illustrator auto-trace, and used it as a logo for a beauty supply place. It was on the signs, the nail polish bottles, and more.
I don’t think the band did this knowingly or maliciously. But to get a time lapse photo such as this one they would have had to hire and pay a pro as recently as 10 or 12 years ago.
I’m not going to agree with the latter part of that statement. It turns property rights on its head.
I sincerely hope this is overturned on appeal.
LinkedIn asked me to publish an article a few years ago, and I touched on this very topic. The internet has made it easy for amateurs and beginners to appear to be more professional than they actually are, but they’re still not experienced enough to know better. I advise them never to use Facebook, for instance, as their business page. Not only can their images be easily downloaded, but FB’s terms of use have the users giving up certain rights.
The dilemma is that you do have to display your work somehow, but you have to be smart about it. On my personal site, for instance, I leave the jokes off most of the images due to plagiarism. (There was an artist who had the same publisher as me who I caught copying all my jokes. putting his art on them, and taking them to outside companies for licensing deals. And once I found the Facebook page of a designer who displayed my humor illustrations with my signature removed and her logo in its place)
I know almost nothing about copyright law (other than that I’ve likely broken it), so I can’t offer a cogent legal analysis, but I do enjoy snapping photos. I tend to agree with Aaron Miller — informal norms should govern much of this, and, for the most part, the law ought to take interest only when profit is at stake.
A few years ago, the college website Cappex
stoleborrowed my photo of Hillsdale’s Central Hall. Am I annoyed? Sure. It’d be nice to receive credit. But do I truly care? No. The only thing I’m losing is the prestige of saying, “Huzzah! That’s my name . . . on a popular website!”Whether or not it matters legally, the means by which Violent Hues found the image is certainly relevant. For all they knew, it could’ve come from Wikimedia Commons. Is it right to punish someone for the crime of not tracing an image back to its original source? I think not.
But THEY made money from your photo. They took what they didn’t own and used it to make money. Why shouldn’t they at least give you the Huzzah and seek your permission.
Funny story: I was making a website for my business and went to the Capitol and took pictures. I sent one to the web site developer to use as the banner and he refused to use it, telling me he needed to get a stock photo from a free source so I wouldn’t get sued for using the picture. I told him that I took the picture with my own camera and he still wasn’t willing to use it. Weird. Mine was better, too, but arguing with him was costing me billable hours — both his and mine.
I have news for people. Some of these “public domain” sites have copyrighted images on them. I found one called publicdomain.com which displays one of my stock photos and the work of people I know who, like me, earn their living from their images and most certainly do not consider them public domain. Caveat downloader.
You used to risk a ticket for using a tripod without permission to take a picture on US Capitol grounds. It may still be the case.
Yeah, like I’m good enough to use a tripod.
What about this?
“A federal judge has ruled that the U.S. Postal Service owes a sculptor $3.5 million for using an image of his replica version of the Statue of Liberty.”
Every judge interprets things differently?
…
I think “nonprofit educational purposes” can mean just about anything, at least of a small nature especially if the source and proposed reason is attributed.
On the other side of the argument, google “Adam Carolla patent trolls”. You can get sued just for playing music in a certain order. “Adam Carolla is being sued for $3 million by a company called Personal Audio, which claims that the funny man has violated a patent from 1996 that covers podcasting.” So you have to pay 1.5 million dollars to attack this intimidation?
…
Copyrights aren’t supposed to last for FOREVER, but then Disney bribed the federal government.
Type the words “Copyright Duration and the Mickey Mouse Curve” into google images.
Disney has stuck its name on EVERYTHIING!
But try doing that with a Mickey Mouse Disney property.
Mary Poppins was written by Pamela Lyndon Travers, OBE (1899-1996), not Walt Disney (1901-1966). Unlike as portrayed in the movie Saving Mr. Banks, P. L. Travers hated the Mary Poppins film until the day she died.
Bambi was written by Felix Salten (1869-1945), not Walt Disney (1901-1966).
Peter Pan stories were written by J. M. Barrie (1860-1937), not Walt Disney (1901-1966).
The Jungle Book was written by Rudyard Kipling (1865-1936), not Walt Disney (1901-1966).
Alice in Wonderland was written by Lewis Carroll (1832-1898), not Walt Disney (1901-1966).
Pinocchio was written by Carlo Collodi (1826-1890), not Walt Disney (1901-1966).
20,000 Leagues Under the Sea was written by Jules Verne (1828-1905), not Walt Disney (1901-1966).
The Three Musketeers was written by Alexandre Dumas (1802-1870), not Walt Disney (1901-1966).
Doesn’t the fact that the photo was taken down enter into the test(s) used by the court? It was an element of the “good faith” portion of the analysis. I think that and the lack of a “market effect” (which is essentially a finding of no damages) probably sealed the result.
I favor those who make digital content available indicating clearly their expectations regarding its reuse. Creative Commons offers quite a few licenses which can be displayed. If someone chooses to ignore these wishes, that is one thing, but at least the wishes of the creator are clearly stated.