Fair Use or Infringement?

Posted on 7/24/2018 by Jim Pickerell | Printable Version | Comments (1)

The legal definition of “Fair Use” is open to a lot of interpretation by courts. in Brammer v. Violent Hues Productions, LLC, a Northern District of Virginia court recently found in favor of Fair Use. If this decision becomes legal precedent then photographers should assume that if one of their images can be found on the Internet, or anywhere else, anyone can use it for free.

Photographer Russell Brammer created a night, time-lapse depiction of the Adams Morgan neighborhood of Washington, D.C. To see the image take a look at this PetaPixel story.

Violent Hues found the photo on the Internet and used it on a commercial website promoting the Northern Virginia Film Festival. The picture appeared on the “things to do in D.C.” section of the site. Clearly the purpose of this website was to promote an event and make money. However, the court found that the use of the photo was “non-commercial” because “the photo was not used to advertise a product or to generate revenue.”

For more on the court’s finding see the report by Nancy Wolff, counsel for the Digital Media Licensing Association (DMLA). She outlines the four factors that must be considered to determine Fair Use and says, “it has been noted that it is not often that a court gets every fair use factor wrong.”

The case is being appealed.

What is badly needed in this industry is something like the Image Creator Locator, (ICL) I outlined earlier this year. A small file of every image requiring permission to use would be placed in a single, easily searchable database. Then when someone finds an image they would like to use they could easily do a visual search of the ICL to determine if permission is required to use the particular image and find contact information necessary to obtain that permission.

Technologically, building such a database would be relatively easy, but convincing someone to take on the project seems to be very difficult.

Copyright © 2018 Jim Pickerell. The above article may not be copied, reproduced, excerpted or distributed in any manner without written permission from the author. All requests should be submitted to Selling Stock at 10319 Westlake Drive, Suite 162, Bethesda, MD 20817, phone 301-461-7627, e-mail: wvz@fpcubgbf.pbz

Jim Pickerell is founder of www.selling-stock.com, an online newsletter that publishes daily. He is also available for personal telephone consultations on pricing and other matters related to stock photography. He occasionally acts as an expert witness on matters related to stock photography. For his current curriculum vitae go to: http://www.jimpickerell.com/Curriculum-Vitae.aspx.  


  • Waring Abbott Posted Jul 24, 2018
    most photo lawyers firmly convinced this will be overturned.

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