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Posted July 17, 2019.
About a year ago, an Alexandria federal trial court issued a decision that panicked commercial photographers. The decision could be interpreted as holding that it’s OK for a business to use someone else’s photograph in advertising without permission. To the relief of copyright owners, the U.S. Fourth Circuit Court of Appeals recently reversed it.
The Fourth Circuit’s decision drives home this point: Your business should not use someone else’s photograph without permission for a business purpose, even on social media, and even if you edit it.
In this case, a professional photographer took a picture of the Adams Morgan neighborhood of Washington, D.C., and posted it on image-sharing websites and on his personal website. He sells licenses to use his photographs.
Violent Hues Productions, a Northern Virginia film-production company, used the photo without permission on its website, where it provided tourist information about the area for its for-profit film festival. Violent Hues cropped out about half of the photographer’s original picture.
When the photographer discovered the unauthorized use, his attorney sent a letter to Violent Hues requesting payment. Violent Hues immediately took the picture down but didn’t pay. The photographer sued, asserting copyright infringement.
Violent Hues won the case in the federal trial court. The trial judge held this was a fair use, mainly because Violent Hues used the photo to convey information about where the film festival would occur. This decision outraged professional photography organizations. Ten of them filed “friend of the court” briefs in the Fourth Circuit lambasting the trial court decision.
The Fourth Circuit recently reversed the decision. It held Violent Hues’ use was not a fair use and sent the case back to the trial court.
If the case doesn’t settle first, Violent Hues probably will be hit with a damages award. It might even have to pay the photographer’s attorney’s fees.
In light of that decision, let’s take stock of do’s and don’ts for a business using photos found online.
1. Images you find online, such as through Google Images, aren’t free to use without permission unless the license terms for the site expressly say so.
There are sites where you can get royalty-free photos for commercial use, such as Creative Commons. Read the license terms on such sites carefully. There may be use limitations, and you may have other obligations, such as giving credit to the source.
2. You aren’t free to use an image just because it contains no copyright notice. Using a copyright notice isn’t necessary for copyright ownership, although using one puts the owner in a better legal position.
3. There is no copyright exception for a business posting a photo on social media, such as Facebook, Instagram, LinkedIn, or Twitter.
4. Don’t mistakenly assume you can fix the problem by taking down the infringing image. The defendant in the Virginia case took it down immediately, but was still sued for damages.
5. Giving credit as to where you got the picture is no substitute for getting permission. Unless your use of the photo is a fair use, you must get permission. What constitutes fair use is a deep topic, but generally the use must be for commentary, criticism, or education.
6. You can avoid the problem by using a photo you take yourself.
Get the picture?
Written on July 15, 2019
by John B. Farmer
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