No, it isn’t always fair use
A federal court in Virginia handed down a decision last month that has the online photography world in a tizzy.
“Court Rules Copying Photos Found on Internet is Fair Use” was the headline of one photo site article last week1 and that’s been repeated time and again. “Legal Brief: Court Rules Copying Photos Found on Internet is Fair Use” read another headline just last week.2
Genealogists also joined in the frenzy of reporting — and again the headlines have tended to read the same way: “Court Rules Copying Photos Found on Internet is Fair Use.”3
In other words, if you read the headlines, the End of the World of Online Photo Copyright As We Know It is Near.
So… does that mean genealogists can use any photograph they find online without fear of copyright infringement? Or that we have to worry about someone else being able to legally swipe our photos and use them despite our copyrights in our own work?
Not by a long shot.
Not even close.
The decision, in a case called Brammer v. Violent Hues Productions,4 isn’t anywhere near as broad as the headline suggests, it’s a highly-fact-sensitive decision in a single case by a single federal judge in a single district, and (in The Legal Genealogist‘s not-so-humble opinion) it’s likely to be overturned on appeal.
In other words, the End of the World of Online Photo Copyright As We Know It is NOT Near.
The case was decided on a legal principle called fair use. It’s a statutory doctrine that comes right out of federal copyright law:
…the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.5
Sounds pretty broad, doesn’t it? But there are four statutory factors set out after that language that a court has to consider, on a case-by-case basis, when it decides if a specific use in a specific case was fair use or not:
• 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.6
In the Brammer case, the court found that, on balance, the evidence suggested that the use in that one particular case was fair use: the image was used for a nonprofit purpose that was informational, it was a factual depiction of a real location and only part of the photo was copied, it had previously been published on a site that did not include any indication that it was copyrighted, and the photographer was still able to license (sell the rights to) the photo after it was used on the non-commercial website.7
The court also found that the use of the image in that case was transformative and in good faith, with evidence of good faith in the fact that the website removed the photo the minute the photographer complained.8
The bottom line here is that there isn’t a hint in the decision that the copyrights of all photographers whose work appears online is at risk. This decision is — like all fair use decisions — based on its unique individual set of facts. This particular combination of facts isn’t likely to be repeated in any other case — which means it can’t be used to predict the outcome of any other case.
And it’s a decision of one trial judge in one federal district — which means it can’t be used to predict the outcome of any other case anywhere else or even by another trial judge in the same district.
Now… don’t get me wrong. I think this is a boneheaded decision and if the photographer appeals, I expect it to be reversed. Several parts of the decision are just plain wrong. For example, the fact that the photo wasn’t marked as copyrighted isn’t even relevant: modern copyright law doesn’t require a copyright notice.9
But even if the decision somehow got upheld, it’s fact-limited. Unless another case had exactly the same facts, this decision isn’t going to matter one bit.
So don’t be fooled by the headlines. No, copying of photos found on the internet is not fair use, not in all cases, not under all circumstances. In many cases, it isn’t going to be a close case.
So if we as genealogists want to use an online image, we’re much better off following the rules and getting permission rather than hoping we’ll find ourselves in front of a sympathetic judge if and when the copyright owner sues.
The end of the online photo copyright world as we know it isn’t near at all.
- Michael Zhang, “Court Rules Copying Photos Found on Internet is Fair Use,” PetaPixel, posted 2 July 2018 (https://petapixel.com/ : accessed 9 July 2018). ↩
- David Schonauer, “Legal Brief: Court Rules Copying Photos Found on Internet is Fair Use,” American Photography’s ProPhotoDaily, posted 3 July 2018 (https://www.ai-ap.com/ : accessed 9 July 2018). ↩
- Dick Eastman, “Court Rules Copying Photos Found on Internet is Fair Use,” Eastman’s Online Genealogy Newsletter, posted 5 July 2018 (https://blog.eogn.com/ : accessed 9 July 2018). ↩
- Brammer v. Violent Hues Productions, Civ. No. 1-17-cv-01009, slip opinion (E.D.Va., 11 June 2018). ↩
- “Limitations on exclusive rights: Fair use,” 17 U.S.C. §107. ↩
- Ibid. ↩
- Brammer v. Violent Hues Productions, Civ. No. 1-17-cv-01009, slip op. at 4-7. ↩
- Ibid. at 4. ↩
- See e.g. U.S. Copyright Office, “Circular 3: Copyright Notice,” Copyright.gov (https://www.copyright.gov/ : accessed 9 July 2018. ↩