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Be Careful Pulling Stock Images From Flickr

By Christopher Coble, Esq. on May 17, 2019

Just because it's a stock image doesn't mean you can use it for free. And even if you really thought it was free, that doesn't mean you won't be liable for copyright infringement.

So says the Fourth Circuit Court of Appeals, reviewing an infringement claim from a commercial photographer who said a production company used his photo that he posted an image sharing site, Flickr, all without his permission or paying him. So, if you're using stock images in your promotional materials, you might want to double check their copyright status.

Good Faith?

Russell Brammer shot the photograph he titled "Adams Morgan at Night" from a rooftop in Washington, D.C. in 2011. Brammer then published a digital copy on his website as well as Flickr, including the phrase "© All rights reserved" beneath it. According to court documents, he sold physical prints of the photo, ranging from $200 to $300, and also licensed it for online use twice -- once for $1,250 and once for $750.

Then in 2016, a film production company called Violent Hues was promoting the Northern Virginia International Film and Music Festival, and posted a cropped version of Brammer's photo a page titled "Plan Your Visit," with the caption, "Adams Morgan, DC." Brammer sued Violent Hues for copyright infringement, and the film company's defense (among others) was that it did not see any "indication on the Photo itself or the Flickr website that the Photo was copyrighted," and so had a good faith belief it was publicly available. Unfortunately for them, that wasn't enough.

Nice Try

"As a basic matter, copyright infringement is a strict liability offense," Fourth Circuit Judge Diana Gribbon Motzin reasoned, "which a violation does not require a culpable state of mind." Even so, the court wasn't all that convinced the Violent Hues had actually acted in good faith:

Whatever relevance good faith has to the fair use inquiry, Violent Hues has not offered any evidence that it acted in good faith. At best, Violent Hues appears to have acted negligently. Violent Hues' owner, Fernando Mico, stated that he believed the Photo was freely available. But contrary to Violent Hues' suggestion, this does not end the matter. For Mico did not explain why this belief was reasonable given that all contemporary photographs are presumptively under copyright ... and given his own acknowledgment that he downloaded the Photo from Flickr, which stated "© All rights reserved" in the Photo caption.

Therefore, the court scrapped the company's fair use defense and ruled in Brammer's favor. It's an important lesson to any small business that relies on stock photos or imagery in its promotional materials.

Your best bet for avoiding intellectual property litigation is to consult with a local attorney about your small business's IP portfolio and any existing or upcoming licensing issues.

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