Using Internet Photos Without Authorization Can Land You in Hot Water
While talked about a lot, few photos are Fair Use Images. In today’s online world, photographers often promote their work on the internet, using website and social media pages to help generate publicity and interest in their photographs. As a business owner or content creator, you may have encountered Flickr, a popular photo-sharing platform with millions of images. Some of these websites show amazing photographs which demonstrate the talent of the photographer. However, because these websites are on the internet, potential customers simply copy the images off the internet with a few clicks of a button and then use them without compensating the photographer.
Typically, this type of use, is unlawful and often treated as copyright infringement. Even according to Flickr, “Unless you have specific permission from the photographer, you cannot use any photo on Flickr. Some people use a Creative Commons license on their photos. If the license they select allows commercial use (not all do), then you can use those photos as long as you follow the licensing terms.”
To avoid liability, some users attempt to claim that their use is fair use. In addition, some websites claim that the images posted on the site are fair use images. However, just because some website on the internet says some images are free, this may not be the case. In some cases, you may believe that an image if free, but it may not be. Because Copyright Law is very draconian, you need to review each image carefully to see if you actually are receiving permission from the photographer or if they are providing a license for use, what type of license they are providing or if the photographer has retained any rights.
Typically, commercial entities do not have the right to lift images from the Internet to use for their own purposes without paying the photographer, and photographers have protection from those that seek to behave in this way.
In a case out of Virginia, Brammer v. Violent Hues Prods. (4th Cir. 2019), a photographer who took a time-lapse photograph of Washington DC, posted the photo on his website and image-sharing site, like Flickr. Basically, the Court ruled that the images were not Fair Use Images because none of the fair use factors favored the defendant and their use did not serve the interests of copyright law. The background of the case is that Russell Brammer, the photographer, took the photograph from a rooftop in Washington, D.C. in 2011. Brammer then published a digital copy on his website as well as on Flickr, one of many online internet photo websites and included the phrase “© All rights reserved” beneath it. According to court documents, he sold physical prints of the photo, ranging from $200 to $300, and also licensed it for online use twice — once for $1,250 and once for $750. A cropped version of the photograph was then posted by a different company for use on a travel related website. After receiving a demand letter, the travel related website removed the photo from its website but they failed to resolve the infringement claim. The Federal Appeals Court of Virginia ruled that the use was infringing and not a fair use.
Fair Use Images
Initially, copyright infringement is a strict liability offense. It doesn’t matter what you believe, if you use a work of art without permission, you are liable. To avoid liability for copyright infringement, it is not uncommon to claim that you believed your use was fair use. However, Fair Use Images are difficult to prove. In making a determination of fair use, the Appeals Court applied a four prong test.
- Was the image used for commercial purposes?
- Was the image transformed by the copier?
- How much of the image was used in comparison to the entire image?
- Did the use have an effect on the market value for the image?
The court found that the use by the copier failed on all four counts, namely that the use was commercial, cropping was not transformative, the portion of the image was substantial in comparison to the entire image. In addition, the court ruled that if the behavior became common and acceptable, the licensing market for professional photography might well be dampened. The use of the image, if done in print, would have been infringement and thus use online was also infringing.
If ordinary commercial use of stock photography constituted fair use, professional photographers would have little financial incentive to exert the time and energy into producing their work. If you have a photograph which is being used without your permission, please contact one of our copyright attorneys to discuss your options.