United States: No, Virginia, You Can't Just Copy Stuff You Find On The Internet, Even If You Don't Notice The Copyright Notice

Last Updated: July 4 2018
Article by David A. Kluft

I usually don't write a whole blog post just to disagree with a sitting federal judge, even when it's about copyright law's most notorious disagreement-generating machine: fair use.

This is an exception. A recent decision by the Eastern District of Virginia may cause some individuals and non-profits to believe that it's permissible to copy and use "publicly available" photos from the internet, as long as they don't know whether or not the photos are protected by copyright.

The purpose of this blog post is to dispel any such belief. Despite what you might have read in Brammer v. Violent Hues, LLC, you cannot just use photos you find on the internet, even if you are genuinely unaware of their copyright status. Why should you believe me and not a federal judge? Because, as I argue below, the other federal judges are on my side.

Brammer v. Violent Hues Productions, LLC

Back in 2011, Photographer Russell Brammer took a time-lapse night time image of the Adams Morgan neighborhood of Washington, D.C., and uploaded it to his Flickr account. Flickr allows photographers to choose from among about ten different copyright settings, including the reservation of all rights, dedication to the public domain, and various Creative Commons licenses. Brammer chose to reserve all rights so, when the photo was uploaded, it was accompanied by the copyright notice: "© All Rights Reserved."

Violent Hues Productions runs the Northern Virginia Film Festival. In 2016, festival employee Fernando Mico found Brammer's photo online and copied it for use on the festival website. Mico used a cropped version of Brammer's photo to illustrate one of the "things to do" in the general area of the festival. Mico admitted that he found the photograph on Flickr through a Google search, but claimed "that he saw no indication that the photo was copyrighted and believed he was making use of a publically available photograph." (By the way, "publically" is apparently a permissible albeit less common spelling of "publicly").

Brammer sued in the Eastern District of Virginia. Violent Hues advanced a fair use defense and, on June 11, 2018, the judge granted summary judgment for the defendant.

The Court's Fair Use Analysis

The Court held that every fair use factor codified at 17 U.S.C. § 107 favored fair use. As to the first factor, the purpose and character of the use, the Court held that the defendant's use of the photo was transformative and also non-commercial (both of these conclusions have flaws, the discussion of which is beyond the scope of this post). The Court also held that:

In addition to being transformative and non-commercial, Violent Hues' use of the photo was also in good faith. The record indicates that Mr. Mico, Violent Hues' owner, found the photo online and saw no indication that it was copyrighted. Mr. Mico attests that he thus believed the photo was publically available. This good faith is further confirmed by the fact that as soon as Violent Hues learned that the photo may potentially be copyrighted, it removed the photo from its website.

Let's talk about "good faith." As an initial matter, one might question how the Judge could have found that there was no genuine issue of fact here for the jury. The plaintiff produced documentary evidence of a copyright notice (you can see it in the lower right hand corner of the Flickr exhibit). By contrast, the defendant's evidence consisted of an affidavit from Mico claiming, not that the copyright notice wasn't there, but only that he didn't see it. Additionally, what relevance does the "publicly available" nature of a work indicate? There are many things that are "publicly available," some of which are copyrighted and some of which are not. You can't just use them all for your website. Did the Court mean to use the term "public domain"?

"Good Faith" and "Innocent Intent"

But the above discussion about the merits of the judge's "good faith" determination is moot, because good faith is not relevant to the fair use analysis in the first place. Why did the judge think it was relevant? Let's turn to the case law he cited on this issue. What's that ... he cited no case law? Ok, then let's see what cases the defendant cited in its brief for this proposition. Wow, nothing there either.

Here is the law. In Harper & Row v. Nation Enterprises (which we wrote about in detail here), the Supreme Court indicated that a defendant's "bad faith" could be taken into account in a fair use analysis. So, for example, if you break into someone's office and steal a photo, and then publish it, the fact that you committed a crime to get the photo will be figured into the fair use analysis. This is because, as Justice O'Connor put it, "fair use presupposes good faith," and evidence of bad faith rebuts that presupposition.

However, that does not mean that evidence of good faith can be affirmatively introduced to prove fair use. In the recent copyright case of Google v. Oracle (which we covered here), the Federal Circuit cited to Ninth Circuit law and to Professor Nimmer's treatise (which in turn cited to lots of other cases) and stated:

[W]hile bad faith may weigh against fair use, a copyist's good faith cannot weigh in favor of fair use [because] the innocent intent of the defendant constitutes no defense to liability.

To be clear, innocent intent is not completely irrelevant to copyright law. Among other things, it can impact the amount of statutory damages, it can determine whether a party is liable for contributory infringement, and it is important to certain aspects of the notice and takedown procedure under the Digital Millennium Copyright Act.

But when it comes to infringement, protestations of "good faith" and "innocent intent" are not admissible as affirmative evidence of non-infringement or fair use, or at least they are not supposed to be. If they were, every fair use analysis would devolve into a contest to see how well the defendant could make sad puppy dog eyes while insisting that no infringement was intended (and even if sad puppy dog eyes were relevant, surely they would be a jury question, not something to be evaluated on summary judgment).

Brammer is an Outlier even in the Fourth Circuit

So why did the judge take a different approach here? Maybe the law on this is different in the Fourth Circuit?

Actually, it's not. For example, in Richard Anderson Photography v. Brown, where a college mistakenly believed that its permission to use certain photographs extended for a longer period than it actually did, the Western District of Virginia rejected the defense of "innocent infringement" as a matter of law. Similarly, multiple decisions of the District of South Carolina have held that:

As between two innocent parties (i.e., the copyright owner and the innocent infringer) it is the latter who should suffer since he, unlike the copyright owner, [] has an opportunity to guard against the infringement by diligent inquiry.

The same holds true even in the Eastern District of Virginia, where a different judge in Phoenix Renovation v. Rodriguez wrote:

Defendants argue that their use of the [copyrighted work] constituted an innocent infringement. 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. As [Plaintiff] only seeks summary judgment on the issue of liability, the Court will not consider this defense in the present context.

In other words, Brammer is an outlier even in the Fourth Circuit ... even in its own district.

So 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. I ran non-profit film festivals for nearly ten years before becoming a lawyer, so I sympathize with your plight. But unless you happen to be in the Eastern District of Virginia and happen to get assigned one particular judge, you will not be able to make sad puppy dog eyes and claim you didn't see the copyright notice. It will not work with other judges ... it likely will not even work on this judge again if the plaintiff bothers to appeal.

To view Foley Hoag's Trademark and Copyright Law Blog please click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
12 Oct 2018, Other, Boston, United States

The New England Electricity Restructuring Roundtable has been meeting bimonthly since 1995 to discuss current topics related to important changes in the electric power industry in Massachusetts and throughout New England.

 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions