Copyright Law & Fair Use

Last night as I was winding down for bed I came across an article on PetaPixel called "Court rules copying photos found on the internet is fair use." I immediately raised an eyebrow and clicked it, because... Uhm, What?? 

My first reaction was that this couldn't possibly be true. I can't tell you how many times I've learned about copyright law over the years. It's a topic that permeates day-to-day activities in the library world, and it's something that has come up a number of times in the ISLT program. Knowing copyright laws with regard to reproduction and fair use is incredibly important in education, social media, and... well, really everywhere.

Suddenly, I found myself down the rabbit hole of Fair Use laws, rebuttals to the rulings here and here, clicking through Wikipedia pages on copyright law, and browsing the full 7 page court ruling.

Here's what happened
A photographer named Russell Brammer took a photo using a slow shutter speed of a Washington DC neighborhood at night. He later found a cropped version of his photo on the Northern Virginia Film Festival's "things to do" page. He contacted Violent Hues Productions (the company behind the festival) and asked them to take it down, which they did, but he followed his request with a lawsuit for copyright infringement. The film festival responded by claiming "fair use."

The ruling
Fair use (17 U.S. Code § 107) includes four elements:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The court ruled in favor of Violent Hues for these reasons:

• The use of the photo was transformative and non-commercial. Essentially, Brammer's purpose for taking the photo was promotional and expressive, while Violent Hues use was only informational, to share information about the local area with festival attendees. Since the photo wasn't used to advertise or generate revenue, Violent Hues' use was noncommercial. 
• It was used "in good faith". Violent Hues couldn't find copyright information when they selected it, and consequently believed it was publicly available. Furthermore, they immediately took it down when requested. 
• The photo was "factual". The court considered the photo to be more factual than creative, since shutter speed and lighting were the only creative elements used to take a photo of a factual depiction of a real-world location. Violent Hues used the photo exclusively for its factual representation of the DC area. 
• It was previously published. If a work has been previously published, it is fair use. 
• The use was a crop instead of the whole. Since the use was only 50% of the image, it is fair use. Violent Hues only used as much of the image as necessary for the informational purpose.
• Use didn't hurt the potential market. Brammer had sold prints of the work both before and after the use, demonstrating that Violent Hues' use of the photo did not damage his revenue. Violent Hues did not sell the photo nor profit from it, demonstrating that they have not 'usurped the market.'

Uh..... okay. 

My thoughts
I'm not sold. Some of the points in the ruling make sense, but I'm really scratching my head about a few of them. So wait.... photos of real place are fair use, even if specific lighting and shutter choices are made? Has artist creativity just been yanked out of their hands? Isn't *anything* in front of a camera real? And, how on Earth does cropping a photo make it better? I can't tell you how many photographer friends I have that have gotten angry about people cropping their photos! I'm also not entirely sure why "good faith" is so important here either, especially when it's not listed as a factor in the fair use law. 

Here's the irony. The court ruled that Violent Hues' use of Brammer's photo did not hurt his market. But if they've ruled in favor of Violent Hues, there's bound to people out in The Wild who will think they can now use photos they find on the internet too. If this snowballs, then yes, it could absolutely hurt the market for photographers as a whole. Why pay to use a photo if you can just yank it, use it, and claim fair use anyway? Oh, I'm sorry Mr. Judge, sir! It was in "good faith!"

Despite the ruling, I will not be changing my cautious behavior when right clicking --> saving images on social media and other networking sites. Just like the 'poor man's copyright' of mailing yourself a completed work, under 17 USC 102, every work of artistic expression is protected by copyright the moment it is placed in a tangible media. Basically everything is protected by copyright unless the author says so. I'll just stick to that, thanks.

What do you think? Do you agree with the court? Do you think this will start becoming a common occurrence?