You Can’t Just Take a Photo from Google Search and then Cry “Fair Use!” Court Rules

What is fair use and what is outright theft?

Everyone has their own opinion, but the only one that matters is that of the law, and a ruling in a US Appeals Court says that you can’t just take a photo from the Internet, use it, and claim fair use.

For some background, this is a continuation of the saga we brought you last summer 2018 when a federal court in the US state of Virginia ruled that taking a picture from the Internet and slapping it on something was fair use.

This appeals court decision reveses that, a ruling that was seen as a huge mistake by most photographers.

It all started when photographer Russell Brammer found one of his photos, albeit cropped, on a webpage for the Northern Virginia Film Festival.

One thing led to another and Brammer then sued festival organizer Violent Hues Productions for violating his copyright to which the company replied that its use of the photo was fair use.

Eastern District of Virginia Judge Claude M. Hilton said that the case was one of fair use “because he determined the use was transformative, non-commercial, in good faith, factual (rather than creative), of a previously published work, only a crop, and harmless to Brammer’s potential market.”

Circuit Judge Diana Gribbon Motz wrote the opinion overturning Hilton, writing: “After examining the four [fair use] factors, we conclude that none weighs in favor of Violent Hues,…Considering these factors together, it is clear that the copying here fails the ‘ultimate test’ of fair use: Violent Hues’ online display of Brammer’s Photo does not serve the interest of copyright law. …We reach our conclusion with the recognition that the Internet has made copying as easy as a few clicks of a button and that much of this copying serves copyright’s objectives. Many social media platforms like Twitter, Facebook, and Instagram are specifically designed for the participatory ‘sharing’ — or copying — of content. We express no opinion as to whether such sharing constitutes fair use. We note, however, that Violent Hues’ use is not of this kind. …Violent Hues did not comment on the Photo, promote the Photo, ‘remix’ the Photo, or otherwise engage with the Photo in a way that might stimulate new insights. What Violent Hues did was publish a tourism guide for a commercial event and include the Photo to make the end product more visually interesting. Such a use would not constitute fair use when done in print, and it does not constitute fair use on the Internet.”

Speaking on the ruling, NPPA General Counsel Mickey H. Osterreicher said, “We are very pleased to see this decision overturning one of the most egregious fair use rulings that many of us who defend copyright can remember…We hope that this will be seen as a clear message that it is much better and far cheaper to seek permission and license images than it is to steal them.”