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?
No.
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.
SOURCES
- 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. ↩
Well, I know one person who takes photos of the Civil War Era and posts them with a made-up term he calls “Web Copyright.” He believes falsely that if he is the first person to post a photo online that no one else can post the same photo on their website without his permission.
He can certainly stop anyone from using HIS COPY of the image — but not any OTHER copy obtained from any OTHER website (like the Library of Congress). That’s contract law — the terms of use of the website — and not copyright law.
I have a copy of a photo of the 78th Ohio Veteran Volunteer Infantry leaving Zanesville after Veteran furlough. I got the photo from another party. In fact, it’s the same person he got the photo from, but he claims I’m violating his “web copyright” since he was the first to publish it online. This is totally bogus.
Interesting. I publish a selfie on my web page and explicitly release it to the public domain. He downloads it, and later reposts on his web site with a copywrite notice. I gather that no one can use that copy from his site, but is free to use that same pixel arrangement if they take it from mine? In other words, he does get rights from something he didn’t create, unless downloading is an act of creation? Actually this doesn’t sound too unreasonable.
What he’s basically doing is using your content, donated to the public, to help finance his website. Legal — yes. Ethical — not in my book. But legal, yes, under contract law and entirely independent of copyright.
My last comment was meant to go under Judy’s reply.
Can a web site owner create a “contract” with his visitors regarding re-use of content without restricting access, i.e. requiring visitors to agree to the “terms of use” before they can view the content? In other words, don’t both parties have to agree before there is a valid contract?
Yes, a website owner can impose terms of service and when you click that box saying you agree, there IS a valid contract.
Judy,
Thank you for your insightful comments.
I hadn’t had a chance to read the actual opinion earlier – but based on the headline, I had already concluded decision couldn’t possibly be THAT broad.
Keep up the good work. 🙂
So glad you posted about this, Judy. Thanks for the wonderful insight, clarification, and agreement that yes, this is a bonehead decision.
The Legal Genealogist strikes again! I love it…there is always a but. Just goes to show us that a headline is only partial truth, if that. We need to get the rest of the story. Thank you, Judy!
Thanks for a clear article
Unfortunately, until the general public becomes informed about the basics of copyright law and how it works, people will still continue to download and use material from online, especially photos. A friend of mine whom I have known for years is a writer with a small publishing house who serves as editor and coach for several writers. I was stunned when she posted erroneous information about copyright to her group of writers, in response to an article about copyright that had appeared in, I believe, the NY Times. I pointed out that the article had been correct, and started a firestorm of protest: they all believed that it was ok to download photos from the internet, because “if it’s on the internet, it’s in the public domain.” I tried to explain why that was not the case, and referred them to material put out by the US Government about copyright. They refused to accept that too. Since these folks are all published writers, it is likely just a matter of time before one or more of them come face to face with the reality of it. I am still in touch with my friend, but we no longer talk about writing – or copyright. If a professional writer can get it so wrong, just imagine how so many others can miss the key points. Not many will take the time to parse out the law the way you did here, Judy. There simply has to be more real education on this topic.
I keep trying to clarify this stuff… that’s all any of us can do: keep trying.
There is a picture of my 3GGF. I’ve seen it a few places, on the Internet and in publications. I wish I knew the history of that photo, but I’ve seen it enough places that I feel it not copyrighted. Is that incorrect?
And there is a business that has called itself after another ancestor because of his history in their small community, but they use someone else’s portrait on their website and in the business. This bothers me, but perhaps it is due to copyright laws.
Making assumptions is generally not a safe way to proceed. Just because a picture is old and has been used online doesn’t mean it’s out of copyright. There are some guides you can use. For example, anything legally published in the US before 1923 is out of copyright. So if you can find a copy of the photo published before then, you’re good to go. Other published versions may be free of copyright for other reasons.
What does “Publish” mean?
Granny paid to have a picture taken at a county fair in 1920. The photographer’s watermark is clear. The print sits in a drawer for 98 years until I post it on Ancestry. The photographer’s grandson sues me for statutory damages saying I published it in 2018. Gulp.
From Copyright.gov:
What is publication?
Publication has a technical meaning in copyright law. According to the statute, “Publication is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.” Generally, publication occurs on the date on which copies of the work are first made available to the public. For further information see Circular 1, Copyright Basics, section “Publication.”
A new website PeopleLegacy.com has “stolen” thousands of memorials from Find-A-Grave and added their own watermark to the photos. Is this legal?
No. See the note at the end of yesterday’s blog.