Using random photos from the internet on your website, copyright infringement?

The creator of a new work of art is granted several exclusive rights to the work by United States copyright law. The owner of the copyright on a work is granted the exclusive right to copy, distribute, display, perform and make derivative works. If someone other than the copyright owner exercises one of these exclusive rights, that can be considered copyright infringement. Fair use is an affirmative defense to an allegation of copyright infringement. When a defendant is sued for copyright infringement they can defend themselves by saying that their use of a copyrighted work is a fair use of the work.

When a court is presented with a fair use defense, there are four main factors to review. The four factors of a fair use defense are: 1. the purpose and character of the use, 2. the nature of the copyrighted work, 3. the amount and substantiality of the copyrighted work taken, and 4. the effect upon the value of the copyrighted work.

Because the analysis of a fair use defense is dependent on the evidence presented and is open to interpretation by the court hearing the case, the outcome can be unpredictable.

A case which illustrates the unpredictability of the fair use defense is Russell Brammer v. Violent Hues Productions, LLC No. 1-17-cv-01009 (E.D. Va. June 11, 2018). The plaintiff, Brammer, is a photographer who took a picture of Washington DC. The defendant, Violent Hues, is a movie festival organizer who used Brammer’s picture on their website. The defendant’s website was for a movie festival being held in Washington DC and the specific web page which displayed a cropped version of the copyrighted photograph was about things to do in Washington DC. Brammer sued Violent Hues for copyright infringement. Violent Hues countered that their use of the copyrighted photograph was a fair use and moved for summary judgment.

The primary questions presented to the court was whether the use of a cropped version of a copyrighted photograph on a film festival website is fair. The court reviewed the four factors of the fair use analysis in detail. Factor one – the purpose and character of the use – the court concluded the factor favored Violent Hues, since the use was transformative and noncommercial. The court found that Violent Hues use of the photograph was for information purposes. Factor two – the nature of the copyrighted work – the court concluded that this factor favored Violent Hues because the photograph was used for purely factual content. Factor three – the amount and substantiality of the copyrighted work taken – the court determined that this factor weighed in favor of Violent Hues because the cropped picture used no more than was necessary to convey the pictures factual content. Factor four – the effect upon the value of the copyrighted work – the court found no evidence of an adverse impact on the market for Brammer’s photograph, Brammer made no effort to market the photograph, and Brammer had received some compensation by other users after Violent Hues used the photograph.

The court ultimately concluded that Violent Hue’s use of Brammer’s photograph was a fair use and granted the motion for summary judgment in favor of the defendant.

If you have questions or comments for the authors of this blog please email us at: admin@uspatentlaw.cn