The US Court of Appeal has reversed a controversial decision that allowed a company promoting a film festival to use a copyrighted photograph on its website without having to pay the photographer that took it. In the original ruling the District Judge of the Eastern District of Virginia allowed the fee-free grab of the image under the rules of ‘fair use,' thus signaling it's okay to lift pictures from a photographer’s website.

An exhibit provided in the appeal showing Brammer's photo as it was seen on his Flickr profile. Note the clear 'All rights reserved' icon in the lower-right-hand corner.

Fortunately, in a new ruling, the Appeals Court has determined that the use of the picture was not acceptable ‘fair use’ and that Violent Hues Productions did indeed infringe the copyright of stock photographer Russell Brammer. In a test using four criteria the court found that Violent Hues Productions’ use of the image failed on all counts to pass as ‘fair use’. The court set out the criteria for fair use as being that the image shouldn’t be used for commercial purposes, whether the image had been transformed by the copier, how much of the image that was used and whether its use had an effect on its market value.

An exhibit provided in the appeal showing Brammer's photo as it was seen on the Violent Hues' website.

The image, showing a placed called Adams Morgan at night, was downloaded from photographer Brammer’s Flickr site and used by Violent Hues Productions to illustrate a ‘Plan Your Visit’ page on the website of the Northern Virginia International Film and Music Festival. The company initially claimed it didn’t know the image was copyrighted, despite Brammer using the words ‘All rights reserved’ beneath it. Violent Hues Productions also claimed the image was transformed by its cropping of it, and that the use was informational and of benefit to festival goers. The court ruled though that the cropping was done only to make the proportions of the image match others on the same page and that it didn’t constitute a ‘new expression, meaning or message’. The court also found that had the company paid Brammer for the picture its ability to inform festival goers would not have been hindered.

It was also ruled that ‘if Violent Hues’ behavior became common and acceptable, the licensing market for Brammer’s work specifically, and professional photography more broadly, might well be dampened.’

It was also ruled that ‘if Violent Hues’ behavior became common and acceptable, the licensing market for Brammer’s work specifically, and professional photography more broadly, might well be dampened’ and the court went on to state ‘If the ordinary commercial use of stock photography constituted fair use, professional photographers would have little financial incentive to produce their work’.

In its conclusion the court said ‘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. Violent Hues’ affirmative defense thus fails as a matter of law. For the foregoing reasons, we reverse the judgment of the district court and remand the case for further proceedings consistent with this opinion.’

The ruling is especially important as it underlines that commercial bodies do not have the right to lift images from the Internet to use for their own ends without paying the photographer, and that photographers do have protection from those that seek to behave in this way. The court specifically acknowledged that ‘the Internet has made copying as easy as a few clicks of a button’.