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-   -   Court Rules Copying Photos Found on Internet is Fair Use (http://www.rangefinderforum.com/forums/showthread.php?t=165537)

PKR 07-02-2018 20:05

Court Rules Copying Photos Found on Internet is Fair Use
 
Just a heads up for those who may have missed this..

From: Michael Zhang at PetaPixel

Court Rules Copying Photos Found on Internet is Fair Use

A Virginia federal court has made a decision that photographers won’t be happy to hear: the court ruled that finding a photo on the Internet and then using it without permission on a commercial website can be considered fair use.


The Backstory

The copyright battle started when photographer Russell Brammer found one of his long-exposure photos of a Washington, D.C. neighborhood cropped and used by the website for the Northern Virginia Film Festival on a page of “things to do” in the D.C. area.

Snip


Stephen Carlisle, the Copyright Officer of Nova Southeastern University, has written up a lengthy rebuttal of the opinion and writes that the ruling passed down on June 11th, 2018, is one that “has the potential to seriously erode the copyright protections afforded photographers.”

“The Court [ignores] key components of the Copyright Act, disregards readily apparent facts, and once again totally botches the ‘transformative use’ test,” Carlisle writes.

Attorney David Kluft of the law firm Foley Hoag has also written up a rebuttal titled “No, Virginia, You Can’t Just Copy Stuff You Find On the Internet, Even if You Don’t Notice the Copyright Notice.”



Full story
https://petapixel.com/2018/07/02/cou...t-is-fair-use/

X

charjohncarter 07-02-2018 20:19

I assumed it was a California court. But I guess there are other denizens of craziness on the East Coast.

PKR 07-02-2018 20:45

Quote:

Originally Posted by charjohncarter (Post 2819531)
I assumed it was a California court. But I guess there are other denizens of craziness on the East Coast.

There is a good chance this will catch on.

I removed my stuff (for the most part) from the web years back. The students at the local art colleges, just across the bay from you, are taught that it's okay to rip photos.

Steve M. 07-02-2018 21:32

So I guess it's fair use if I download Gone With the Wind or Clockwork Orange and put it up on a commercial site? One could argue that films, or at least movies that are shot on film, are nothing more than photographs on a roll of film. The court might have a different view of this sort of thing, which would invalidate it's original ruling.

dmr 07-03-2018 01:15

Interesting that one key point is that significant cropping weighed into the decision.

Chriscrawfordphoto 07-03-2018 01:32

It'll likely get overturned on appeal.

Timmyjoe 07-03-2018 03:45

With all seriousness though, that is disappointing. I removed any of my images that have value about five years ago when I found a few people lifting them from Flickr and using them without permission or compensation. I still find images I've sold to publications being used without their or my permission, but I figure they have bigger pockets than I do and I let them deal with it.

Had a Photography Instructor at an NPPA conference a few years ago tell us pretty much, "If you put it up on the internet, you've just given it away." It sucks, but for all practical purposes, once it's out there, it's really hard to control who and how someone uses it.

Best,
-Tim

seagrove 07-03-2018 04:29

I do agree with the instructor that Timmyjoe mentioned about putting images on the internet. It is a shame that everyone feels justified in taking creative works away. Such is life!

I have only had one infringement (in print) that I know of and the publisher dealt with me directly to resolve it.

JoeLopez 07-03-2018 04:41

Quote:

Originally Posted by Chriscrawfordphoto (Post 2819559)
It'll likely get overturned on appeal.

I agree completely.

Calzone 07-03-2018 04:43

My gal is a fashion blogger who has over 527K followers. My shots get "lifted" all the time. Pretty much I know that I'm give away this photography for free.

For my own B&W fine art work I am offline.

Cal

splitimageview 07-03-2018 04:59

If you don't want your stuff copied, don't post it.

The law only works for you if you've got the money to fight...

ColSebastianMoran 07-03-2018 05:11

I'm a realist: regardless of the law, people will re-use photos from the internet.

Small time users will be impractical to stop; we can't chase all of them.

The real bad cases will be stopped, sued, or embarrassed (e.g. stopStealingPhotos.com).

Phil_F_NM 07-03-2018 06:04

Back in 2000 I took a few photos of an historic diner, printed the photos, had them framed and gave them to the owner with the written and signed agreement as to terms of use. The owner passed away and a few months later I saw numerous copies of these photos in the restaurant for sale. I told the new owner this was not in our agreement to which she replied "It's my restaurant, these are my photos." After which I said I'd be back with an attorney. A JAG officer on board my ship (I was in the Navy at the time) looked at our prior agreement, wrote a letter of his own which was basically the precursor to a cease and desist order. I delivered the letter, took all of the copies from the restaurant and the original prints. They now hang in my parents' house.

While my example is from the days of film it's still the same now, even worse. News outlets are posting stock photos which are years old in order to show drama in current events instead of sending a reporter to the scene. I'm sad for the way the media, the internet and what fair use has become, and I'm glad I'm out.

Phil Forrest

Calzone 07-03-2018 06:21

Quote:

Originally Posted by Phil_F_NM (Post 2819603)
Back in 2000 I took a few photos of an historic diner, printed the photos, had them framed and gave them to the owner with the written and signed agreement as to terms of use. The owner passed away and a few months later I saw numerous copies of these photos in the restaurant for sale. I told the new owner this was not in our agreement to which she replied "It's my restaurant, these are my photos." After which I said I'd be back with an attorney. A JAG officer on board my ship (I was in the Navy at the time) looked at our prior agreement, wrote a letter of his own which was basically the precursor to a cease and desist order. I delivered the letter, took all of the copies from the restaurant and the original prints. They now hang in my parents' house.

While my example is from the days of film it's still the same now, even worse. News outlets are posting stock photos which are years old in order to show drama in current events instead of sending a reporter to the scene. I'm sad for the way the media, the internet and what fair use has become, and I'm glad I'm out.

Phil Forrest

Phil Forrest

Phil,

This experience is very disheartening. Sad to hear, but I'm glad that you were able to recover and enforced your rights.

This type of vigilance can cause one to waste their life energy, and is too demanding and depleting to constantly maintain.

Cal

xayraa33 07-03-2018 06:23

This is now like the halcyon days of the Napster free for all, but in the photographic image world. It may not last .

presspass 07-03-2018 06:38

This is nothing new. Years ago, a photographer took a black and white photo of a mare and her foal running side by side. The state of Kentucky took the image and used it on license plates. The state eventually paid the photographer. I had an insurance company use a photo I took of a fire in its advertising and I had to pursue them for months just to get them to desist. Never paid for it. We put our digital images on our newspaper website. My black and white film work goes from negative to wet print. I would love to share some of them, but I don't want them picked up and have them become 'fair use.' The above advice is excellent - if you don't want them stolen, don't post them.

MrFujicaman 07-03-2018 07:39

Expect to see the movie studios fight this big time!

Phil_F_NM 07-03-2018 09:35

Just because images are out there doesn't mean it is right to use them at will. If I have a house with big bay windows and the actual Mona Lisa is hanging in my living room in plain sight of the sidewalk, you can't simply take an image of my living room, crop the photo have it printed on canvas and sell it as a genuine Mona Lisa.
The internet is not quite a public place and rules exist or existed to protect the work of those who made it.

Phil Forrest

davidnewtonguitars 07-03-2018 12:03

Thank you Mods for cleaning up this thread.

charjohncarter 07-03-2018 16:07

Quote:

Originally Posted by xayraa33 (Post 2819609)
This is now like the halcyon days of the Napster free for all, but in the photographic image world. It may not last .

Yes, and yes, get the software (Napster), move to Virginia (or California), set it up, have suckers buy ads. And as the English say, 'Bob's your uncle'. At least until it winds its way through the courts.

xayraa33 07-03-2018 16:30

Quote:

Originally Posted by charjohncarter (Post 2819672)
Yes, and yes, get the software (Napster), move to Virginia (or California), set it up, have suckers buy ads. And as the English say, 'Bob's your uncle'. At least until it winds it way through the courts.

I agree with your crystal ball gazing 100 %

As long as money is made and the right people get a cut then it can be settled out of court and all will be well.

Dante_Stella 07-03-2018 17:21

This seems like an unusual case for a mega-firm to take on defending, since it seems fraught with potential positional conflicts with large media clients.

Understand this decision for what it is - a decision on summary judgment, which is susceptible to reversal on appeal because an appellate court can redecide the case on the same factual record, with zero deference to the lower court. That means applying the same factors test differently (and more, "conventionally").

The summary judgment opinion rests on just the fair use defense, so there are not any obvious alternative grounds on which the Court of Appeals could uphold summary judgment if the defense fails (in many cases, if a claim requires A, B, C, and D, and the lower court rules there is no A or D, the fact that a mistake was made in the decision on D makes no difference if there is also no A). So if the defense fails on appeal, the case proceeds - either without the defense at all or with further hearings to decide the defense under the correct legal framework. And the result of that would be another appeal, a trial, or possibly even summary judgment for the plaintiff.

BUT the weird thing is that this opinion goes out of its way with unnecessary exposition on the factors that only underlines its unusual understanding of copyright law - which would add fuel to the plaintiff's argument on appeal that the lower court simply misapplied the test.

The effect of this? Maybe none. An unpublished district court opinion is not binding on other cases, and it is only persuasive if other courts consider it (and its deciding court) to be credible on the subject. I'm sure that right now, a federal district court in New York or California is writing an opinion that explicitly rejects the reasoning of this case. This kind of thing happens all the time.

ColSebastianMoran 07-03-2018 17:27

Dante, thanks for the info.

fdarnell 07-03-2018 17:44

When everything belongs to everyone, no one will produce anything.

The internet is accelerating this trend.

Huss 07-03-2018 18:46

Essentially this ruling states that image piracy no longer exists. And that can be transferred to movies etc. I see an ad for Dwayne Johnson in his latest flick? According to this if I take a screen cap, it now belongs to me to do what I want.
If someone streams a movie, I can download it and now it belongs to me.
etc etc

Let's think of any famous pic we've seen online. How about Afghan Girl? Hey, I screen capped it, now it's mine!

Nope, this ruling will not stand.

PKR 07-03-2018 18:52

Quote:

Originally Posted by splitimageview (Post 2819587)
If you don't want your stuff copied, don't post it.

The law only works for you if you've got the money to fight...

Well, that's true to a degree.

The first case of image theft I saw, was at a big photo sales event. It was so big, I couldn't see it all in an hour or two.

At that time, I was doing my own b&w processing and printing on personal work and occasional work related jobs. Everything else went to a small local b&w print lab a block away. One of the lab employees saw me at this event and she dragged me over to a booth where the vendor was selling some expensive stuff. He had a framed Adams' Moonrise , with no price on the work. This was years back and I think he was looking for $15K. Peggy says, look at it closely and, tell me what you think. I asked for permission to pick the work up, the owner said fine. So, I looked at it closely and saw what she meant. I put the piece down and asked what he wanted for it. He said, make me an offer.

So, we walked off, and Peggy, who is a very good b&w printer says, what do you think? I said, the grain is too fine. Looks like Kodalith. She said, exactly what i thought . This guy, likely a frame shop owner or friend to one, copied an original, and did it really, really well.

So, a year or so ago, I had a gallery print make it's way to China. I'm waiting to see the posters of the image for sale. Scanning a big print, with professional gear, will yield a very good file for lithography plates.

farlymac 07-03-2018 19:05

Quote:

Originally Posted by davidnewtonguitars (Post 2819655)
Thank you Mods for cleaning up this thread.


How's this? "The judge is probably some incompetent appointee of the current administration."


Feel better?


PF

PKR 07-03-2018 19:11

Quote:

Originally Posted by fdarnell (Post 2819679)
When everything belongs to everyone, no one will produce anything.

The internet is accelerating this trend.

Yep, and it's why people don't file patents on a lot of stuff..

The formula for Coca Cola and the KFC recipe are old, pre China and the web, examples. Today, lots of intellectual property goes unfiled and is highly protected. The trend is catching on. But, I agree with copyrighting your work and keeping it off the web.

I think, small still images on youtube are still relatively safe from theft ?

davidnewtonguitars 07-03-2018 19:54

The Judge in question is Judge Claude Hilton of the Eastern District of Virginia, was appointed in 1985 by the Great One.

Beemermark 07-03-2018 20:16

Quote:

Originally Posted by davidnewtonguitars (Post 2819696)
The Judge in question is Judge Claude Hilton of the Eastern District of Virginia, was appointed in 1985 by the Great One.


Judges are human. In this case though I'm inclined to believe that the state of Virginia, financed by taxpayers, had far and away better lawyers then the photographer.

Dante_Stella 07-04-2018 05:51

Quote:

Originally Posted by Beemermark (Post 2819698)
Judges are human. In this case though I'm inclined to believe that the state of Virginia, financed by taxpayers, had far and away better lawyers then the photographer.

I understand that the festival was represented by a large private law firm (which I will not name) whose rates I'm pretty sure the festival could not afford if it couldn't afford to license a picture. Understand also that although Article III federal judges are the ones with lifetime appointments and are ultimately responsible for what they sign, they have a legal research staff that assists with assembling research and in many cases writing up an initial analysis.

Dante

Out to Lunch 07-04-2018 06:02

Quote:

When everything belongs to everyone, no one will produce anything. The internet is accelerating this trend.


My two cents: smart artists and entrepreneurs don't reject a more fluid property rights landscape and they don't avoid the internet. Instead, they work with it.

Chriscrawfordphoto 07-04-2018 06:29

Quote:

Originally Posted by Peter Wijninga (Post 2819767)
My two cents: smart artists and entrepreneurs don't reject a more fluid property rights landscape and they don't avoid the internet. Instead, they work with it.

I hear people who are not professional artists say this all the time, but when asked "How do you live off of 'exposure,' they refuse to answer and try shame me for being too dumb and lazy to succeed. Bull****.

Anyone know how a 'smart artist' lives with no right to earn a living from his or her work? Seems to me that the only ones who do are the ones who were smart enough to have rich families to provide their 'real' living. I wasn't that smart.

FujiLove 07-04-2018 07:41

Quote:

Originally Posted by Chriscrawfordphoto (Post 2819778)
I hear people who are not professional artists say this all the time, but when asked "How do you live off of 'exposure,' they refuse to answer and try shame me for being too dumb and lazy to succeed. Bull****.

Anyone know how a 'smart artist' lives with no right to earn a living from his or her work? Seems to me that the only ones who do are the ones who were smart enough to have rich families to provide their 'real' living. I wasn't that smart.

Okay, I'll take the risk of being run out of town again, and attempt an answer...

The 'smart artist' understands that the raison d'etre of the Internet is it's ability to spread information far and wide for practically zero cost. They also understand that a natural downside of the Internet is the ability of anyone to save content and share it elsewhere. In fact, as soon as any image is viewed, the browser has already made a copy. The 'smart artist' realises that the Internet, and the web more specifically, would be a fantastic promotional tool, but a very poor place to store high quality media. Hence they post low resolution versions of their work in as many places as possible, with details about themselves and what they do, and link back to a website enabling the visitor to purchase high quality artwork, book them for jobs etc. They waste zero time wrestling with the issues of copyright, because they know the only thing anyone can copy is a low quality version of their art, and besides, copying and spreading it across the web is actually promoting their art...so go right ahead!

This would be a perfect system if instead of the energy wasted chasing copyright, we instead focused on 'ownership etiquette'. For instance, imagine if anyone could legally copy any image for zero cost as long as it was linked back to the original owner. The 'smart artist' would receive so much traffic they would be inundated with sales and bookings.

Of course that will never happen. People are too 'smart' ;-)

davidnewtonguitars 07-04-2018 07:47

I am watching my young, college student, semi-professional photographer son, giving away his fashion photography to online fashion "magazines" for the exposure, and even having to buy a copy of the small edition printed version, with his work on the cover and as the featured artist inside. They won't even give him a copy of his own work?
I think the end of the world has come for pro photographers.

Quote:

Originally Posted by Peter Wijninga (Post 2819767)
My two cents: smart artists and entrepreneurs don't reject a more fluid property rights landscape and they don't avoid the internet. Instead, they work with it.


benlees 07-04-2018 09:31

I think we need to keep in mind we don't have all the relevant info and this was an individual case. The sky hasn't fallen yet.

Frankly, the photograph in this particular case is as close to fair use as can be. It's of a public space and shows no distinctive creative elements. It's not part of cohesive body of work that has been distorted in any way.

That being said; for sure they should not have used it in the first case, but the festival took down the photo when requested to do so. After that, a more civilized negotiation between the two parties would have been more fruitful.

It's a shame that value seems to equal money in discussions about this case, here and the comments at petapixel.

Steve M. 07-04-2018 09:36

If it's a photo that is taken in a public space where there is no expectation of privacy, you are correct, anyone can use it. It doesn't matter who put the festival on Dante, they would have to have posted NO PHOTOGRAPHY signs at the entrance, which they could do on private property. If it was held on private property they can certainly do that, but not if it happened on public property. Well, they can post all the signs they want on public property, but it's not their property, so it can't be legally enforced.

Was this a ruling on only one particular instance? If so, I also agree that this is much ado about nothing. There is nothing illegal or wrong about copying a photo and using it at home in private (or for that matter, taking a photograph of an existing work of art)..... it's when the photo gets posted online that it becomes a problem if the person posting the copied photograph does not secure permission from the original photographer or agency that owns the rights to it. Did that change in this ruling?

David, did your son sign over the rights to his photograph to the agency in question? They can't do what you said legally unless that happened. If he didn't agree to it, if they just stole it online, that's a problem legally and he could sue them. If the ruling we are discussing says they can now do that legally, it will be challenged. The temporary solution is not to post anything online that is a large file. Keep it tiny.

davidnewtonguitars 07-04-2018 09:51

Oh yes, he was fully in agreement with giving his work away for exposure in the "magazine".

Quote:

Originally Posted by Steve M.;
David, did your son sign over the rights to his photograph to the agency in question?


Dogman 07-04-2018 10:31

If you do your work for free, you indicate it has no value. When you place your work on the internet where people can get it for free, use it for free and never think about paying for it, you're essentially saying it's without value to you. What would you expect a judge to think when faced with these facts?

I don't have a solution. I would love to show my photography online but I see too much of this attitude. Would anyone think it's okay to walk into a gallery and take a photograph off the wall and use it to advertise a product? Of course not. But the prevailing attitude is that as long as it's on the internet it's there for the taking...for free.

farlymac 07-04-2018 18:41

Quote:

Originally Posted by davidnewtonguitars (Post 2819696)
The Judge in question is Judge Claude Hilton of the Eastern District of Virginia, was appointed in 1985 by the Great One.


Jackie Gleason was never President. :D


Ol' Ronnie was the one who proved "Any native born American can become President". Except maybe the real natives.


PF


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