Virginia Court Rules Copying Photos Found on The Internet is Fair Use

Russel Brammer before and after.png
(Russel Brammer's original photo top and how it appeared on the Northern Virginia Film Festival website) 


If you're a photographer, this should scare you. A Virginia federal court ruled that if you find a photo on the internet and use it without the owner's permission, even in commercial situations, can be considered fair use. 

Well, to be fair, the judge found this one example to be of fair use, but does that mean that anyone can use the ruling to do the same thing regardless of the circumstances?

How did we get here? Russell Brammer, a Washington D.C. area photographer, posted the above photo on his Flickr page. He then noticed it on the Northern Virginia International Music and Film Festival website. He immediately reached out to Violent Hues Productions, the company behind the film festival, and sent them a cease and desist letter. The Festival organizers immediately removed the photo from their website, but Mr. Brammer sued them anyway. 

Violent Hues argued that they had no idea the work was copyrighted and thought that their use of it fell under fair use. 

Here's how the law currently views what factors can dictate fair use.  

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

The judge agreed with Violent Hues and ruled that Mr. Brammer's photo fell into Fair use. He made this ruling because the festival organizers found the photo online and saw no indication that is was copyrighted. Furthermore, their use in good faith was further confirmed when they immediately removed the photo from their website when they learned that it could potentially be copyrighted. 

The big thing is the way the photo was used. Mr. Brammer's photo is a beautiful representation of the city. Regardless of how the image was taken, it is a factual representation of a real place. This means that even though the image had a long shutter exposure and was artistic, it was still instantly recognizable as the Adams Morgan neighborhood in Washington, D.C. The defendants used the photo for its factual content listing Adams Morgan as a place to visit in town. 

Violent Hughes also argued that Mr. Brammer had posted the picture to several websites as early as 2012. Now, most of us would think that by posting the photo online in multiple spots it would be like marking it as yours and something that you own... the judge saw it the other way though.

"Furthermore, the scope of fair use is broadened when a copyrighted work has been previously published. It is undisputed in the record that Brammer previously published the photograph on several websites as early as 2012, and at least one of these publications did not include any indication that it was copyrighted. This prior publication and Violent Hues' use of the photo for its factual content favors a finding of fair use."

Even cropping the photo which you'd think would work against the defendants worked in their favor as they only used half of the photo -- The half that best represented a real place. 

This particular ruling doesn't mean everyone gets a free pass to use any photo they find on the internet for whatever purpose they deem fit, but it could mean that unscrupulous businesses view it as such and might cite this specific ruling as their free pass to take and use whatever they want. 

The problem here is that the original photo on his Flikr page said ALL RIGHTS RESERVED underneath it. Clearly labeled. Shouldn't that have been enough for the photographer to win?