A legal battle that erupted between a photographer and a Film Festival after the latter used a copyrighted photo has concluded with a federal court in Virginia, which ruled that taking an image from the Internet without permission for a commercial website can be considered fair use.

After discovering one of his images, a long exposure taken in Washington, D.C., was being used as part of guide of local amenities on the website of Northern Virginia Film Festival in 2016, photographer Russell Brammer issued a cease and desist. Thankfully, the company co-operated and removed the photo as per his request. However, when Brammer persisted by suing for copyright infringement, the company behind the festival, Violent Hues Productions, claimed their featuring of the image was fair use.

Brammer was pursuing action on two separate accounts: the initial infringement of the image being used without his permission, and also for the alteration (in this case, cropping) of the photo and subsequent removal of copyright information.

There are a number of factors that need to be looked at when considering fair use in the United States, including what the image is being used for, is it transformative, how much of a photo is being used, and whether or not the usage affects the value of the original works.

In a move sure to infuriate photographers further afield than just the West Coast, an Eastern District of Virginia judge has claimed photographs are “factual depictions,” meaning that the copying of them is fair use. Even for commercial use.

Here’s what the Court District Judge Claude M. Hilton concluded:

Although used on a commercial website, the use was non-commercial because it was informational rather than expressive: “[it was used] to provide festival attendees with information regarding the local area.”

The company believed it was publicly available as they couldn’t see it was copyrighted (and co-operated with Brammer when asked to remove it).

The photo was “factual” — that being, “a depiction of a real-world location” as opposed to “creative.”

That because the image had been published elsewhere previously, and had been done so without any indication it was copyrighted work, the image was allowed to be reproduced.

The image was cropped and thus, the company were being kind so as to not use any more of the photo than was absolutely necessary.

There was no evidence to suggest Brammer was out of pocket from the usage, and so the usage was fair game.

Writing his ruling, Judge Hilton said: “Because each of the four fair use factors favors Violent Hues, the Court finds that Violent Hues’ use was a fair use, and that there was no copyright infringement.”

Now, Nova Southeastern University are amongst many critics claiming the Court ignored various aspects of the Copyright Act in order to make their decision. Copyright Office at the University, Stephen Carlisle, can be quoted as saying the ruling “has the potential to seriously erode the copyright protections afforded photographers.”

If you’ve got the stomach for it, there’s a seven-page long copy of the Court’s ruling available online.

Lead image by Patrick Fore via Unsplash.