An interesting copyright case came across my desk recently that I need to stress is probably quite wrong and likely to get overturned on appeal. But nonetheless, the case presented the issue related to copyright and Fair Use. As background, whenever a claim of copyright infringement is made, the first and usually only defense is Fair Use. Fair Use has a very specific definition found in the copyright statute and a lot of people get it wrong—and in this case, the judge is one of those people.
To be fair, copyright is sometimes a very complex subject and it is not always easy to address in legal decisions. But frankly, this is not one of those complex cases.
Essentially the facts of the case were these:
- Photograph Russel Brammer took a time-lapse picture of the Adams Morgan neighborhood at night;
- Brammer published it on Flickr and his personal website;
- Brammer posted a copyright notice and reserved all rights (a pretty common assertion) and attached the notice to the photo he took;
- Violent Hues Productions runs a film festival in Northern Virginia and cropped Brammer’s Adams Morgan photo and used the cropped photo as part of the advertising on their website;
- Brammer sued for copyright infringement and Violent Hues claimed Fair Use.
So far, it is a pretty run-of-the-mill copyright infringement cases. But our story takes a turn when Violent Hues said they had not seen the copyright notice, had cropped the photo so they were not using the whole image and therefore were using the excerpt from the photo in good faith. So, Violent Hues claimed, we are covered by the Fair Use Doctrine. The big plot twist is that the judge agreed with Violent Hues.
Well, a lot of people started seeing this and it made its way around the internet like the most recent bikini photo of Kendall Jenner. People began thinking “well if it’s Fair Use we can crop the photo a little bit, we say didn’t see the copyright notice, we are not intending to infringe, and we are good guys who made a mistake.”
Here is the problem—good faith intent is NOT part of Fair Use statute or legal analysis. Good faith intent is utterly irrelevant for determining if infringement has occurred.
Even if you have good intent you can still infringe on someone’s copyright. Good faith intent is not part of the Fair Use defense. “Fair Use implies good intent,” according to the Supreme Court. Good faith or innocent intent may factor into damages calculations such as perhaps lowering the damages, but it does not avoid infringement.
In short, there is no such thing as a Good Faith defense to copyright infringement.
The judge in the Brammer v. Violent Hues case is WRONG! While it will take a while to get the legal matter addressed, here are some basic moral and business steps to take now and in the future.
- If you are not sure if an image is copyrighted, then your best and safest assumption is to assume the image is copyrighted and all rights are reserved.
- Do not, under any circumstances, assume that an image you find on the internet is free for you to use unless it specifically says “this image is in the public domain.”
- If you can’t find out who the owner is or how to license the image for use – DO NOT USE IT. There are billions of images on the internet. You can find one that allows you to legally license the image.
- DO NOT ASSUME that just because you crop the image or make some minor modifications to it that you have changed the image enough to be able to claim Fair Use.
- If and when you find the owner of the image, and obtain a license to use the image, follow the limits of the license to the letter. If you have the right to use the image on a website, do not assume you can put it on printed material or vice versa. If you exceed the limits of the license, you are infringing on the copyright and liable for damages.
P.S. The Brammer Case is very likely to be overturned on appeal. The legal ruling is contrary to pretty much all copyright law that has ever been written in the Fourth Circuit Court of Appeals and the United States Supreme Court in dealing with Fair Use.