A recent decision by the Court of Appeal in the US, overturning a previous and highly controversial decision regarding unauthorised use of images on the internet, has come as a relief to professional photographers worldwide.

The claim in question involved a company promoting a film festival who used a copyrighted photograph on its website without authorisation or receiving payment from the photographer that took the picture. The original District Judge ruling in Virginia permitted such unauthorised usage of the image under the ‘fair use’ rules, causing uproar amongst professional photographers with concerns over the message that the ruling sent out;- that it is ok to ‘grab and copy’ an image without payment or permission.

The photograph that was used was downloaded from photographer Russell Brammer’s Flickr site and subsequently used by Violent Hues Productions as part of a ‘Plan Your Visit’ page on the website of the Northern Virginia International Film and Music Festival. Violent Hues initially claimed it didn’t know the image was copyrighted, despite Brammer clearly labelling below his image that ‘All rights (are) reserved’ beneath it. The company also claimed the image was significantly altered by further cropping, and that the use was informational and of benefit to festival goers. The Appeal Court ruled though that the cropping was done only to make the proportions of the image match others on the same page and that it didn’t constitute a ‘new expression, meaning or message’. The court also found that had the company paid Brammer for the picture its ability to inform festival goers would not have been hindered.

The decision also made it clear that if such ‘image grabbing’ behaviour became the norm, that professional photography would likely to become ‘dampened’. The Court also added that:

If the ordinary commercial use of stock photography constituted fair use, professional photographers would have little financial incentive to produce their work”

As the internet continues to evolve commercially and ethically, the Appeal decision is particularly important as it underlines that commercial entities and businesses do not have the automatic right to lift images from the Internet to use for their own ends without gaining permission first or paying the photographer. In particular, the Court highlighted how ‘the Internet has made copying as easy as a few clicks of a button’.

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