“But It’s on the Internet!” You Still Need a License to Use that Photo!

A recent decision of the Fourth Circuit Court of Appeals demonstrates the risks of using “stock” photographs and other images found on the internet without obtaining a license from the copyright holder. (Brammer v. Violent Hues Productions, LLC (4th Cir. 2019) 922 F.3d 255.) Under U.S. copyright law, all “works of authorship” are protected by copyright, regardless of whether they are posted online and regardless of whether they feature a copyright symbol or notice. So-called “stock” images posted online are protected to the same extent as other visual works.

In 2011, Brammer, a commercial photographer, shot a nighttime color photograph of the Adams Morgan neighborhood of Washington, D.C. Brammer typically licenses his work as stock imagery. Stock images are “photographs that are fungible in terms of their use in contexts such as magazines, websites, or brochures” and are typically licensed for illustrative or aesthetic purposes. (Eric E. Johnson, The Economics and Sociality of Sharing Intellectual Property Rights (2014) 94 B.U.L. Rev. 1935, 1962.)

Brammer published a digital copy of the Adams Morgan photo on his own website and uploaded it to the image-sharing website Flickr, including the phrase “© All rights reserved.” He sold physical prints of the photo for $200 to $300 and licensed it for online use, once for $1,250 and once for $750.

The owner of Violent Hues, a film production company, found the photo using a Google search, downloaded the photo from Flickr, cropped it, and placed it on a website promoting a regional film festival. When Brammer learned of the copying, his attorney sent Violent Hues a letter asking for compensation. Violent Hues removed the photo but paid nothing. Brammer sued for copyright infringement.

Violent Hues asserted its use of the photo was “fair use” under the U.S. Copyright Act. The Copyright Act recognizes fair use as a defense to infringement when the work is used for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. (17 U.S.C. § 107.) (Fair use in the teaching context is subject to several conditions and limitations; not all uses of a work for teaching are fair use.)

When considering whether the fair use defense applies, the Copyright Act requires courts to consider four factors: (1) the purpose and character of the use, including whether it is of a commercial or nonprofit nature; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect of the use on the potential market for or value of the copyrighted work. (17 U.S.C. § 107.) When the character of the use is “transformative,” meaning it communicates something new or different from the original, the first factor will weigh in favor of fair use. As the U.S. Supreme Court has noted, however, if the copying is done to “avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish).” (Campbell v. Acuff-Rose Music, Inc. (1994) 510 U.S. 569, 580.)

Violent Hues contended it “transformed” the photograph by placing it in a list of tourist attractions to visit during the film festival, thus putting the image in a new, transformational context. Because the only change to the photo was cropping it to a different size, the court rejected this argument. Additionally, because Violent Hues is a for-profit company and used the photo to promote a for-profit film festival, its use was commercial and it should have paid the customary licensing fee.

Violent Hues next contended it acted in good faith, posting the photo with a belief that it was not copyright protected. The court rejected this claim as well, noting Violent Hues did not offer any evidence of good faith, and that copyright infringement does not require a “culpable state of mind.”

The court held the nature of the work — where the photographer “made many creative choices” — also weighed against fair use. And while Violent Hues cropped roughly half of the photo, the portion it retained included the most expressive features or the “heart” of the work. The “proportionality” factor therefore weighed against fair use. As to the last factor, the effect on the potential market for the work, the fact that Brammer had already sold physical copies of and licenses to the image demonstrated that a market did exist, and Brammer would lose income if others used the image, like Violent Hues, without paying.

This decision serves as a reminder that images found on the Internet are not in the “public domain” merely because they are publicly available. Republishing a stock photo or other image (other than one that is specifically labeled for free use) without obtaining a license from the copyright holder is an infringement in violation of federal law. Copyright infringement can result in significant legal fees and penalties for individual users and their employers. The phenomenon of the “copyright troll” — a business that obtains copyrights to various works and continually searches the internet for unauthorized uses of the works — makes it increasingly likely the use will be discovered and challenged.

Educational agencies’ websites should feature only licensed images, license-free images, or original work created by the website users themselves. Copyright protection also applies to writings and musical works. Questions about copyright issues should be directed to legal counsel.

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