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Court: Copying Photo Off the Internet is Not Fair Use

Capturing the iconic city skyline of Hong Kong by the Victoria Harbour during sunset
By William Vogeler, Esq. on May 17, 2019

In a case with internet-wide ramifications, a federal appeals court said a photographer may pursue damages against a company that copied his photo off the internet. The decision seemed like a no-brainer. every lawyer knows that just because something's on the internet doesn't mean people can copy it. Then again, people do it all the time.

In Brammer v. Violent Hues Productions, however, the defendant claimed he didn't see a copyright symbol on the photograph, made no money from it, and removed it from his website as soon as he discovered it was copyrighted. That made it a "fair use v. good faith" question for the U.S. Fourth Circuit Court of Appeals.

Fair Use

Russell Brammer is a commercial photographer, and published a photograph titled "Adams Morgan at Night" on his website. He also uploaded it to an image-sharing website with the phrase "(c) All rights reserved" beneath it. Fernando Mico, owner of the Violet Hues film production company, used the photo -- without attribution -- on the company's website in 2016. The website promoted a film festival and other attractions.

After Brammer discovered the unauthorized use of his photo, his attorney demanded Violet Hues pay for its use. The company took down the photo, but did not pay for it. Brammer sued for copyright violation, including damages and attorney's fees. Violet Hues filed a motion for summary judgment, and a trial court granted on the grounds the defendant used the photo in good faith. That was bad news for photographers everywhere.

The Fourth Circuit changed all that, however. The appeals court said the photo was used for commercial purposes, and rejected the defense that it was used in good faith.

Good Faith

As a basic matter, the Fourth Circuit said, copyright infringement is a strict liability offense. It does not require a culpable state of mind to be a violation. The appeals court noted most appellate courts presume good faith and balance it against bad faith, but there was nothing to balance for Violet Hues. "Whatever relevance good faith has to the fair use inquiry, Violet Hues has not offered any evidence that it acted in good faith," Judge Dana Gribbon Motz wrote for the unanimous panel. "At best, Violet Hues appears to have acted negligently."

The appeals court reversed and remanded with instructions that the trial court proceed. Before the lawsuit, Brammer had licensed his photo for online use twice: once for $1,250 and once for $750. With attorney's fees, he will probably get more now.

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