Let’s take a look at this astounding court decision. First, some background… A company that organizes a film festival took a cropped version of a photographer’s photo and posted it to their website. The suit states the website is a reference guide for filmmakers to have information about the local area where the film festival is to take place, such as things to do and lodging.
The company said they found the photo online, saw no copyright indication, and so believed they were using a publicly-available photo. This from a film festival organizer. The photographer lawyered up and the organization removed the photo upon the lawyer’s request. The photographer still filed suit. The suit claims copyright infringement and a second claim of altering or removing the original copyright, providing their own false copyright for the photo. The full ruling is here.
The company claimed “fair use” for the photo. According to US copyright law, you can use a copyrighted item under fair use if it’s for criticism, comment, news reporting, teaching, scholarship, and research. Quite clear. To cut to the point, the court amazingly ruled the photo was used under fair use law.
The court said there were four factors to consider when it was deciding its ruling. The first factor was the purpose and character of the use, including whether such use is of a commercial nature. In this regard, the court said it considered whether the new work is transformative and the extent to which the use served a commercial purpose. In summary, the court said here that the use of the photo was not commercial. It was informational. The film festival organizer was just using the photo to provide information about the area. It was not advertising a product or using it to generate revenue.
Not Used to Advertise a Product
This is absurd to the point of wondering if this judge has lost his marbles. The entire website is solely for a commercial purpose. The film festival is seeking sponsors and charges submission fees for films. Furthermore, part of the marketing behind the film festival is its central messaging that it is “bringing a slice of Hollywood to Northern Virginia & Washington D.C. metro area.” The location, which is also central to the photographer’s photo that was used, is critical to the commercial activities of the film festival organizers. To state in the ruling the photo wasn’t used to advertise a product is just plain ill. The film festival and the location are the product.
The court ruling then goes on to state use of the photo was in good faith. That the photo was not clearly marked with a copyright, so they believed it was okay to use it. Again, this, from a film festival organizer? And then it somehow further claims good faith was expressed by the fact the organization took down the photo upon request. So, getting away with copyright infringement can now be made okay so long as you stop once your caught? Would the court then rather everyone assume anything not marked with a copyright is fair use or should we instead exercise caution and assume things might be copyrighted? Clearly the court is encouraging one action here.
The court ruling then goes on about how the photographer might have used creative elements for the picture, such as a chosen shutter speed or lighting but, since it’s just a depiction of a real-world location, that creative element somehow doesn’t matter. Ansel Adams must have rolled over at that. The creative element is highly likely why the film organizer chose that photo. After all, it appears a Google search (probably how the photo was found) provides plenty of other options.
The ruling continues with a point about the photograph being previously published and that at least once there was no indication of copyright. So, this further strengthens an argument for fair use. Is this judge serious? As I write this, I’m listening to songs in the background. None of them have expressed any copyright claims. Thus, I can go ahead and use any of them for my next YouTube video. That’s the logic behind this ruling? Now we must assert copyrights for things on each and every use?
Just Use Part of It
The next outrageous ruling was about how much of the photo was used. The court ruled that it is highly relevant that because the film festival only used half the photograph, again it doesn’t violate copyright and makes it fair use. So, people can now crop out watermarks and because they only use a portion of the photo they now have a strengthened argument for fair use. About that YouTube video, I’ll just use half the song. This is beyond absurd. Marbles rolling all over the place.
In the final part of the ruling, the court states it had to determine whether there was damage done to the marketability of the photographer’s photo. The court ruled that the film festival’s use had no adverse effect on being able to sell the photo. The court said the photographer said he had been compensated for the photo six times, including three physical prints, and three usage licenses. And, that at least two of the sales occurred after the film festival’s alleged copyright infringement. Well, how about the sale that should have happened to the film festival – that somehow doesn’t count? For a time, the film festival used the photo of a location to promote a film festival for a metro area that is part of their commercial marketing and didn’t pay for it. How about that lost sale? It somehow doesn’t count.
The court closes by reiterating its claim that for all four fair use considerations all four proved to not violate the photographer’s copyright. I’m a photographer, not a judge. Maybe I’m biased. But, I’ll be the judge of this one and state the ruling on this case is wrong on all four counts.