Court Rules Copying Photos Found on Internet is Fair Use

charjohncarter said:
Yes, and yes, get the software (Napster), move to Virginia (or California), set it up, have suckers buy ads. And as the English say, 'Bob's your uncle'. At least until it winds it way through the courts.
Click to expand...

I agree with your crystal ball gazing 100 %

As long as money is made and the right people get a cut then it can be settled out of court and all will be well.
 
This seems like an unusual case for a mega-firm to take on defending, since it seems fraught with potential positional conflicts with large media clients.

Understand this decision for what it is - a decision on summary judgment, which is susceptible to reversal on appeal because an appellate court can redecide the case on the same factual record, with zero deference to the lower court. That means applying the same factors test differently (and more, "conventionally").

The summary judgment opinion rests on just the fair use defense, so there are not any obvious alternative grounds on which the Court of Appeals could uphold summary judgment if the defense fails (in many cases, if a claim requires A, B, C, and D, and the lower court rules there is no A or D, the fact that a mistake was made in the decision on D makes no difference if there is also no A). So if the defense fails on appeal, the case proceeds - either without the defense at all or with further hearings to decide the defense under the correct legal framework. And the result of that would be another appeal, a trial, or possibly even summary judgment for the plaintiff.

BUT the weird thing is that this opinion goes out of its way with unnecessary exposition on the factors that only underlines its unusual understanding of copyright law - which would add fuel to the plaintiff's argument on appeal that the lower court simply misapplied the test.

The effect of this? Maybe none. An unpublished district court opinion is not binding on other cases, and it is only persuasive if other courts consider it (and its deciding court) to be credible on the subject. I'm sure that right now, a federal district court in New York or California is writing an opinion that explicitly rejects the reasoning of this case. This kind of thing happens all the time.
 
Essentially this ruling states that image piracy no longer exists. And that can be transferred to movies etc. I see an ad for Dwayne Johnson in his latest flick? According to this if I take a screen cap, it now belongs to me to do what I want.
If someone streams a movie, I can download it and now it belongs to me.
etc etc

Let's think of any famous pic we've seen online. How about Afghan Girl? Hey, I screen capped it, now it's mine!

Nope, this ruling will not stand.
 
splitimageview said:
If you don't want your stuff copied, don't post it.

The law only works for you if you've got the money to fight...
Click to expand...

Well, that's true to a degree.

The first case of image theft I saw, was at a big photo sales event. It was so big, I couldn't see it all in an hour or two.

At that time, I was doing my own b&w processing and printing on personal work and occasional work related jobs. Everything else went to a small local b&w print lab a block away. One of the lab employees saw me at this event and she dragged me over to a booth where the vendor was selling some expensive stuff. He had a framed Adams' Moonrise , with no price on the work. This was years back and I think he was looking for $15K. Peggy says, look at it closely and, tell me what you think. I asked for permission to pick the work up, the owner said fine. So, I looked at it closely and saw what she meant. I put the piece down and asked what he wanted for it. He said, make me an offer.

So, we walked off, and Peggy, who is a very good b&w printer says, what do you think? I said, the grain is too fine. Looks like Kodalith. She said, exactly what i thought . This guy, likely a frame shop owner or friend to one, copied an original, and did it really, really well.

So, a year or so ago, I had a gallery print make it's way to China. I'm waiting to see the posters of the image for sale. Scanning a big print, with professional gear, will yield a very good file for lithography plates.
 
fdarnell said:
When everything belongs to everyone, no one will produce anything.

The internet is accelerating this trend.
Click to expand...

Yep, and it's why people don't file patents on a lot of stuff..

The formula for Coca Cola and the KFC recipe are old, pre China and the web, examples. Today, lots of intellectual property goes unfiled and is highly protected. The trend is catching on. But, I agree with copyrighting your work and keeping it off the web.

I think, small still images on youtube are still relatively safe from theft ?
 
davidnewtonguitars said:
The Judge in question is Judge Claude Hilton of the Eastern District of Virginia, was appointed in 1985 by the Great One.
Click to expand...


Judges are human. In this case though I'm inclined to believe that the state of Virginia, financed by taxpayers, had far and away better lawyers then the photographer.
 
Beemermark said:
Judges are human. In this case though I'm inclined to believe that the state of Virginia, financed by taxpayers, had far and away better lawyers then the photographer.
Click to expand...

I understand that the festival was represented by a large private law firm (which I will not name) whose rates I'm pretty sure the festival could not afford if it couldn't afford to license a picture. Understand also that although Article III federal judges are the ones with lifetime appointments and are ultimately responsible for what they sign, they have a legal research staff that assists with assembling research and in many cases writing up an initial analysis.

Dante
 
When everything belongs to everyone, no one will produce anything. The internet is accelerating this trend.
Click to expand...



My two cents: smart artists and entrepreneurs don't reject a more fluid property rights landscape and they don't avoid the internet. Instead, they work with it.
 
Peter Wijninga said:
My two cents: smart artists and entrepreneurs don't reject a more fluid property rights landscape and they don't avoid the internet. Instead, they work with it.
Click to expand...

I hear people who are not professional artists say this all the time, but when asked "How do you live off of 'exposure,' they refuse to answer and try shame me for being too dumb and lazy to succeed. Bull****.

Anyone know how a 'smart artist' lives with no right to earn a living from his or her work? Seems to me that the only ones who do are the ones who were smart enough to have rich families to provide their 'real' living. I wasn't that smart.
 
Chriscrawfordphoto said:
I hear people who are not professional artists say this all the time, but when asked "How do you live off of 'exposure,' they refuse to answer and try shame me for being too dumb and lazy to succeed. Bull****.

Anyone know how a 'smart artist' lives with no right to earn a living from his or her work? Seems to me that the only ones who do are the ones who were smart enough to have rich families to provide their 'real' living. I wasn't that smart.
Click to expand...

Okay, I'll take the risk of being run out of town again, and attempt an answer...

The 'smart artist' understands that the raison d'etre of the Internet is it's ability to spread information far and wide for practically zero cost. They also understand that a natural downside of the Internet is the ability of anyone to save content and share it elsewhere. In fact, as soon as any image is viewed, the browser has already made a copy. The 'smart artist' realises that the Internet, and the web more specifically, would be a fantastic promotional tool, but a very poor place to store high quality media. Hence they post low resolution versions of their work in as many places as possible, with details about themselves and what they do, and link back to a website enabling the visitor to purchase high quality artwork, book them for jobs etc. They waste zero time wrestling with the issues of copyright, because they know the only thing anyone can copy is a low quality version of their art, and besides, copying and spreading it across the web is actually promoting their art...so go right ahead!

This would be a perfect system if instead of the energy wasted chasing copyright, we instead focused on 'ownership etiquette'. For instance, imagine if anyone could legally copy any image for zero cost as long as it was linked back to the original owner. The 'smart artist' would receive so much traffic they would be inundated with sales and bookings.

Of course that will never happen. People are too 'smart' ;-)
 
I am watching my young, college student, semi-professional photographer son, giving away his fashion photography to online fashion "magazines" for the exposure, and even having to buy a copy of the small edition printed version, with his work on the cover and as the featured artist inside. They won't even give him a copy of his own work?
I think the end of the world has come for pro photographers.

Peter Wijninga said:
My two cents: smart artists and entrepreneurs don't reject a more fluid property rights landscape and they don't avoid the internet. Instead, they work with it.
Click to expand...
 
I think we need to keep in mind we don't have all the relevant info and this was an individual case. The sky hasn't fallen yet.

Frankly, the photograph in this particular case is as close to fair use as can be. It's of a public space and shows no distinctive creative elements. It's not part of cohesive body of work that has been distorted in any way.

That being said; for sure they should not have used it in the first case, but the festival took down the photo when requested to do so. After that, a more civilized negotiation between the two parties would have been more fruitful.

It's a shame that value seems to equal money in discussions about this case, here and the comments at petapixel.
 
If it's a photo that is taken in a public space where there is no expectation of privacy, you are correct, anyone can use it. It doesn't matter who put the festival on Dante, they would have to have posted NO PHOTOGRAPHY signs at the entrance, which they could do on private property. If it was held on private property they can certainly do that, but not if it happened on public property. Well, they can post all the signs they want on public property, but it's not their property, so it can't be legally enforced.

Was this a ruling on only one particular instance? If so, I also agree that this is much ado about nothing. There is nothing illegal or wrong about copying a photo and using it at home in private (or for that matter, taking a photograph of an existing work of art)..... it's when the photo gets posted online that it becomes a problem if the person posting the copied photograph does not secure permission from the original photographer or agency that owns the rights to it. Did that change in this ruling?

David, did your son sign over the rights to his photograph to the agency in question? They can't do what you said legally unless that happened. If he didn't agree to it, if they just stole it online, that's a problem legally and he could sue them. If the ruling we are discussing says they can now do that legally, it will be challenged. The temporary solution is not to post anything online that is a large file. Keep it tiny.
 
If you do your work for free, you indicate it has no value. When you place your work on the internet where people can get it for free, use it for free and never think about paying for it, you're essentially saying it's without value to you. What would you expect a judge to think when faced with these facts?

I don't have a solution. I would love to show my photography online but I see too much of this attitude. Would anyone think it's okay to walk into a gallery and take a photograph off the wall and use it to advertise a product? Of course not. But the prevailing attitude is that as long as it's on the internet it's there for the taking...for free.
 
davidnewtonguitars said:
The Judge in question is Judge Claude Hilton of the Eastern District of Virginia, was appointed in 1985 by the Great One.
Click to expand...


Jackie Gleason was never President. :D


Ol' Ronnie was the one who proved "Any native born American can become President". Except maybe the real natives.


PF
 
You must log in or register to reply here.
Back
Top