Image Copyright Judgement Could Pave They Way For More Litigation

The use of images on the Internet is highly regulated. You must respect certain rights that we have summarized here . Obviously, you can not walk on Google Images, upload your favorite photo and use it on your site. But in the United States, justice has finally given reason to a company that used a photograph without permission. A decision that rocked the profession, with fears that other judgments are made in this direction.

The case of the photo “found” on the Internet

This decision was made on June 11, 2018 by the Virginia Federal Court in the US. A photographer, Russel Brammer, attacked the Northern Virgin Film Festival for copyright infringement because one of his photographs had been used without his permission. The photo was also edited (cropped) and the copyright information was removed. Violent Hues Production, the company that organizes the festival, defended itself by saying that the use of this photo respected fair use .

The fair use in question in the United States
In the United States, for the use of a photo to be considered fair , four elements are studied:

The purpose of using and transforming the photo
The nature of the protected work
The part of the work used
The effect of this use on the author’s income

In this case, the Federal Court found that the photograph fulfilled the fair use criteria. It was used on a commercial site, but the purpose of the use was non-commercial: the photo allowed to inform the public on the place of the festival, it did not do directly publicity for a product and did not allow, to increase the revenues of the festival. The organizers used only part of the photo, about half (it was croppée). This transformation of the original content also tipped the scales in the direction of the festival, because this portion of the photograph was enough to inform users.

Secondly, the judges found that the photograph was factual and not creative. It was a long pose representing a night city. The creativity of the photographer was recognized (choice of the duration of exposure, opening of the diaphragm …) but the fact that it is a public place (a street) was enough to decide in the direction of the festival, because the photo was not used for its creative side but for the information it allowed to bring.

The court also found that the organizers were in good faith: they retrieved the photo from the Internet, on a site that did not indicate that the photographer was protected, so they thought they could use the photograph freely. Judgment strengthened by the fact that the organizers agreed to remove the photo when they learned that it was protected.

Finally, the court was not able to prove that the photographer had obtained less significant income because of the use of his photograph on the festival site. The four fair use criteria were thus combined to make a favorable decision for the organizers. This verdict obviously does not please photographers, who may fear a more deregulated use of their photos on the Internet …

Tina Johnson helped bring The Marketing Folks from a-weekly newsletter to a full-fledged news site by creating a new website and branding. She continues to assist in keeping the site responsive and well organized for the readers. As a contributor to The Marketing Folks, Tara mainly covers industry new.