Have you ever been scared that someone was going to steal your photos without you knowing and use them? Is the thought that at least you could sue them for copyright infringement the one thing that keeps you from losing your mind to fear?
Well, enter the decision of Brammer vs. VIOLENT HUES, LLC.
Ugh, I don’t know where to start. Okay, how about with a quick summary of the story.
- Photographer takes time lapse photo
- Photographer posts photo to the internet
- Person working for a film festival grabs the photo off the internet and uses it on a webpage of ‘things to do in the area’ when you’re attending the festival
- Photographer discovers photo being used online, sends cease and desist
- Festival gets letter, takes the photo down
- Photographer sues for copyright infringement
Okay, so the case goes before a federal judge aaaaaannnndd….the judge rules against the photographer!
You’re thinking, “What? Why? They stole the photo!”
Well, the judge’s ruling stated that:
- The festival acted in ‘good faith’ because they took the photo down when asked
- The work was ‘transformative’ because they cropped a portion of the picture
- There was ‘innocent intent’ because ‘there was no indication’ the photo was copyrighted
- The use did not impact the photographer’s financial income because the photographer has sold prints of the photo since the festival used it
- And, finally, that the festival did not use the photo ‘commercially’ since the page of the site the photo was on was ‘informative’ and not for selling tickets
If you know anything about copyright law, and, as a photographer, you should – there are a lot of problems with that ruling.
“Innocent Intent” and “Good Faith”
First, you can’t use ‘innocent intent’ to support ‘good faith’. Also, ‘innocent intent’ cannot be used as a defense. They’re usually used when it comes to determining statutory damages for infringement.
In fact, in another recent copyright case, Google vs. Oracle, the judge ruled that “a copyist’s good faith cannot weigh in favor of fair use [because] the innocent intent of the defendant constitutes no defense to liability.”
By claiming ‘innocent intent’, you are accepting liability for what you did. You are saying you did it, but that you did it ‘innocently’.
As a matter of fact, in another case in the SAME circuit court, a different judge stated “While the defense of innocent infringement can impact the remedies available against a defendant for copyright infringement, it will not constitute a defense to a finding of liability.”
Ignorance is not a defense
You don’t need to mark every photo with a copyright notice to receive copyright protection. A work receives copyright protection at the moment of creation. Yes, registering the work with the copyright office provides you with some additional protection and would make a case easier, but you don’t need to stamp every photo on your website with a copyright mark to be protected…
However, the photographer in this case provided evidence that the photo indeed had a visible copyright notice, clearly in view. The defendant, the festival, provided an affidavit stating that they did not NOTICE the copyright. NOT that the copyright was not there, but that they didn’t see it!!!!
Available to the public
The judge in the case noted that since the defendant did not notice a copyright mark, they believed the photo was ‘publically available’ [sic].
I’m not sure what that means. Is it supposed to mean ‘in the public domain’? Lots of things are available to the public, that does not mean anyone can take them and use them for their business. Public domain and ‘available to the public’ are two vastly different things.
The judge said that while the website itself was commercial, the page that the photo was used on was ‘informative’ and therefore non-commercial.
This made my eyes roll so hard that I nearly gave myself whiplash.
The intent of the entire site is to sell tickets to the festival. Having informative pages supports that goal.
Let me give you an example:
Let’s say, as a wedding photographer, I decided to do a blog post on “Best Locations in New York City to Get Married”. Let’s say I had not photographed some of the locations I decided to use. So I looked for images of those locations, did not ‘notice’ any copyrights on the individual photos, copied them, cropped them a little bit, and threw them up on my blog post.
Is that okay? The post is ‘informative’, right? NO! Plenty of websites have ‘informative’ areas, but, if you are selling something through the site, the entire purpose is commercial.
Does this mean people can just take your photos?
No, this ruling does not mean that people will have free reign to snag your pictures and use them.
According to David Kluft of Foley Hoag LLP, “…if you are an individual or a non-profit, and you heard about this great new copyright case, here is the bottom line: Brammer is NOT a coupon for free photos for your website.”
In fact, you should read Kluft’s entire blog post on the ruling. It’s clearly explains the intricacies of the case. Plus, I enjoyed his play on “Yes, Virginia, there is a Santa Claus!” in the post title.
Why this ruling should scare you!
While this decision will most likely get overturned on appeal, there are going to be people who hear about it and think it gives them a license to steal.
There is probably going to be an uptick in people swiping photos and claiming they didn’t notice any sort of copyright protection notice. They won’t follow up and see if the ruling gets overturned.
Having to fight them in court can be a costly battle. And that is what truly scares the shit out of me. This photographer is going to have to appeal this decision to get it overturned, and most likely he will, but that is more time and money.
How to protect yourself
If you don’t already keep an eye out for your images being used without your permission, get on it now. There are services available that can scour the internet for your photos. Petapixel put together a list of 10 sites that can help you protect you – click here to view their list.
One of the things I have found very helpful is to create a Google alert for my business name – which you should be doing anyway. Any time it pops up on a web page, I get a notice. I have found more instances of people using my photos without permission (thinking that simply putting a credit on the photo made it okay) than I have ever found actively searching – and I’ve found plenty by actively searching!
Protect yourself, know your rights to your own work!
Has anyone ever tried to steal your photos? What happened? Tell me about it in the comments.