The legal definition of “Fair Use” is open to a lot of interpretation by courts. in
Brammer v. Violent Hues Productions, LLC, a Northern District of Virginia court recently found in favor of Fair Use. If this decision becomes legal precedent then photographers should assume that if one of their images can be found on the Internet, or anywhere else, anyone can use it for free.
Photographer Russell Brammer created a night, time-lapse depiction of the Adams Morgan neighborhood of Washington, D.C. To see the image take a look at this
PetaPixel story.
Violent Hues found the photo on the Internet and used it on a commercial website promoting the Northern Virginia Film Festival. The picture appeared on the “things to do in D.C.” section of the site. Clearly the purpose of this website was to promote an event and make money. However, the court found that the use of the photo was “non-commercial” because “the photo was not used to advertise a product or to generate revenue.”
For more on the court’s finding see the report by
Nancy Wolff, counsel for the
Digital Media Licensing Association (DMLA). She outlines the four factors that must be considered to determine Fair Use and says, “it has been noted that it is not often that a court gets every fair use factor wrong.”
The case is being appealed.
What is badly needed in this industry is something like the
Image Creator Locator, (ICL) I outlined earlier this year. A small file of every image requiring permission to use would be placed in a single, easily searchable database. Then when someone finds an image they would like to use they could easily do a visual search of the
ICL to determine if permission is required to use the particular image and find contact information necessary to obtain that permission.
Technologically, building such a database would be relatively easy, but convincing someone to take on the project seems to be very difficult.