Use of about half a publicly available photo was fair use

From Rebecca Tushnet’s 43(B)log:

Brammer took a time-lapse photo of the Adams Morgan neighborhood of Washington, D.C., at night, then posted it on image-sharing websites as well as his personal website. Violet Hues created a website intended to be used as a reference guide providing information about the local area for filmmakers and other attendees of a festival it ran and used a cropped version of Brammer’s photo on its website. Violent Hues removed the photo after receiving a C&D.

. . . .

Brammer sued for copyright infringement and for removal and alteration of CMI under 17 U.S.C. § 1202, though he abandoned the latter claim. The court found that the use was fair. First, the use was transformative in function and purpose: Brammer’s purpose was promotional and expressive, while Violent Hues’ purpose was informational. The use was also noncommercial, because it wasn’t done to advertise a product or generate revenue. It was also in good faith: Violent Hues’ owner found the photo online “and saw no indication that it was copyrighted.”

Nature of the work: “[I]f the disputed use of the copyrighted work ‘is not related to its mode of expression but rather to its historical facts,’ then the creative nature of the work is mitigated.”  The photo had creative elements, but was also “a factual depiction of a real-world location,” and was used purely for its factual content. And the work was previously published, favoring fair use.

Amount and substantiality of the portion used: it was cropped about in half, which was no more of the photo than was necessary to convey the photo’s factual content and serve Violent Hues’ informational purpose, also weighing in favor of fair use.

. . . .

A transformative and non-commercial use is unlikely to cause market harm; Violent Hues didn’t sell copies of the photo or generate any revenue from it. It didn’t provide a market substitute for the photo, especially since it only used approximately half of the photo.

Link to the rest at Rebecca Tushnet’s 43(B)log

PG’s notes for indie authors:

  1. Make certain that you include a copyright notice in each version of your book. As the OP indicates, while a copyright comes into being when you create your book, many people feel the absence of a copyright notice means the author is not claiming a copyright for the book. The Book Designer has several examples of copyright notices here.
  2. As the OP also indicates, fair use is an exception to the protection given to an author by copyright statutes. Under the fair use doctrine, third parties may use parts of the copyrighted materials so long as that use falls under the fair use exceptions.
  3. Here’s what the United States Copyright Office says about fair use:

Section 107 calls for consideration of the following four factors in evaluating a question of fair use:

Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes:  Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair.  This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below.  Additionally, “transformative” uses are more likely to be considered fair.  Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.

Nature of the copyrighted work:  This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair.

Amount and substantiality of the portion used in relation to the copyrighted work as a whole:  Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely. That said, some courts have found use of an entire work to be fair under certain circumstances. And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part—or the “heart”—of the work.

Effect of the use upon the potential market for or value of the copyrighted work:  Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.

In addition to the above, other factors may also be considered by a court in weighing a fair use question, depending upon the circumstances. Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on a fact-specific inquiry. This means that there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission.

4. It’s always a good idea to formally register your copyright with the US Copyright Office. Go here for more information.

5. The information in this post only applies for copyrights in the United States. If you publish your book in countries other than the United States, while there may be reciprocal recognition of rights for an author to protect a work via copyright, the standards governing Fair Use may well be different in a country other than the US.

14 thoughts on “Use of about half a publicly available photo was fair use”

  1. The fun and costs come when someone disputes whether it was fair use or not. Win or lose, there will be time and money spent/wasted.

  2. This part sounds a little fishy: “Violent Hues’ owner found the photo online “and saw no indication that it was copyrighted.””

    If you find something online and can’t tell, you should probably not use it, because it might be copyrighted, and could cost you money (including legal fees) whether you had good intentions or not.

    • Yeah, that comment disturbed me, too. “In good faith” does not mean, to anyone who understands creative works and the appropriate use thereof, that one “sees no indication that it was copyrighted”. How does automatic copyright protection even exist if *not* looking for someone to ask for permission, or not finding that person’s contact info, or not even thinking that maybe you should all constitute “in good faith” and lets you get away with using that work? If that’s how it is, then for all functional purposes, copyright protection *isn’t* automatic upon a work’s creation. And considering how some people don’t think works need to have permission for reuse or flat out disagree with this and think that everything everywhere should be free, to what extent does the creator need to go to say that yes, they in fact do own the copyright to their work and that this means someone must get permission to use it? I see artists on DeviantArt constantly putting all kinds of ugly watermarks on their work and “NO, YOU DO NOT HAVE PERMISSION TO USE OR REPOST THIS” notices in the description, which tells me that a heck of a lot of people on the internet are reposting work that’s not theirs, sometimes even working to hide or remove the author’s signature from the work. I’m disappointed that the courts apparently err on the side of “You didn’t cover half the image with a ‘COPYRIGHTED, DO NOT USE’ notice, so it’s fair use.” I mean, I’m all for fair use being a thing, but just saying that a person “saw no indication that it was copyrighted”–which very often means “did not look”–and letting them get away with misusing someone else’s work is a slap in the face to the very idea of “automatic copyright”.

  3. This part sounds a little fishy: “Violent Hues’ owner found the photo online “and saw no indication that it was copyrighted.””

    If you find something online and can’t tell, you should probably not use it, because it might be copyrighted, and could cost you money (including legal fees) whether you had good intentions or not.

  4. I honestly don’t understand the whole “saw no indication that it was copyrighted”.

    It EXISTS. Therefore, chances are that SOMEONE holds the copyright, and if you’re not sure who, that person almost certainly isn’t you.

  5. Agreed, that it’s best to assume stuff on the web is copyright. For instance, I use (legally purchased) stock photo images in the covers of my ebooks and in some promotions. While I credit these inside the books, along with the overall artwork of the cover, and try to do so in at least one use on my website (where a book may appear several times), I can’t control every place a book cover shows up on the internet. Nor can I require book platforms and book blogs to display the copyright information.

    I have no problem with sites using my book covers in their entirety, generally to promote my books. But it would be unethical for someone to crop out part of the cover, such as the copyright stock image, to use again without payment.

    As I write this, something else occurs to me. Blasty is constantly taking down pirate sites for me (thousands of them so far), most of which probably don’t have the ebooks but pretend to do so in order to plant viruses. However, they ARE violating copyright by displaying my covers for their nefarious purposes.

    Not that we can prosecute them. Durn it.

    • Yeah, Blasty is a terrible choice for this. I have a site that promotes romance novels and links those books to Amazon. There is no copyrighted material anywhere on the site except for the copy I wrote for the site. Blasty got my site taken out of Google’s search results and I had to file counter claims just to get it back up IN TEN BUSINESS DAYS as long as the author in question didn’t pursue legal action (while I lost affiliate fees and income that supports the website).

      The author didn’t know this would happen but it’s obvious to me that Blasty is indiscriminate with its DMCA notices.

      It was ridiculous and a mess and my site should never have been targeted by these people because all the site is is a list of links to the books at Amazon and some reviews and descriptions so that people can find things they like to read.

      I wasn’t happy, let me say that. Blasty is obviously incompetent or relying 100% on bots to send out these DMCA notices to Google, because anyone who visits that site could see right away what it is.

      Frankly, I’m embarrassed for the authors using it.

      And I can say now that even though the author in question didn’t realize this would happen, well, I won’t be posting any more links to her books or recommending them on my site again. Nope. Never.

      Not that I’m holding a grudge against the author personally. I just don’t want the hassle.

    • Yeah, Blasty is a terrible choice for this. I have a site that promotes romance novels and links those books to Amazon. There is no copyrighted material anywhere on the site except for the copy I wrote for the site. Blasty got pages on my site taken out of Google’s search results and I had to file counter claims just to get them back in at the end of TEN BUSINESS DAYS as long as the author in question didn’t pursue legal action (while I lost affiliate fees and income that supports the website).

      The author didn’t know this would happen (I contacted her immediately to bring this to her attention) but it’s obvious to me that Blasty is indiscriminate with its DMCA notices.

      It was ridiculous and a mess and my site should never have been targeted by these people because all the site is is a list of links to the books at Amazon and some reviews and descriptions so that people can find things they like to read.

      I wasn’t happy, let me say that. Blasty is obviously incompetent or relying 100% on bots to send out these DMCA notices to Google, because anyone who visits that site could see right away what it is.

      And I can say now that even though the author in question didn’t realize this would happen, well, I won’t be posting any more links to her books or recommending them on my site again. Nope. Never.

      Not that I’m holding a grudge against the author personally. I just don’t want the hassle.

      • I’m sorry to hear that, Lynn. Blasty is supposed to check to see if the content is actually present on the site.

        I believe there is a way the author can notify Blasty that the site is okay, although this isn’t automatic. I have done this with several blog sites that simply had links. But I’m disturbed to hear that your site was targeted.

        • The author did say she was canceling the blasty, but it was still ten business days before I got a notice from Google telling me my pages were added back to the search results.

          As you can probably tell, even without tone, I’m still a little hot about the whole thing. I hated being accused of copyright infringement.

          • I don’t blame you for being steamed. I hope anyone who has a problem like this involving me will email me immediately (email is on my home page at jacquelinediamond.net.)

            However, I can’t afford to cancel Blasty. There’s a shocking number of websites–literally thousands–either stealing my work (and I work very hard for very modest returns) or preying on readers. Who may blame me if they pick up a virus!

            I should add that I LOVE sites that promote books and include links. I hope you earn a bundle on Affiliate commissions!

      • Ugh. This is the right comment I wanted posted. The site keeps doing some weird hiccup thing with my comments when I edit them. I think this is the second or third time I’ve ended up with multiples of the same comment posted.

  6. @ Alicia and RMH

    That’s just the ‘but I didn’t know – no one told me’ excuse that three-year-olds use when they get caught.

    In this day of the easy lawsuit, rolling your own is much safer.

Comments are closed.