Copying Photos Found on Internet is Fair Use, Virginia Federal Court Rules (petapixel.com) 159
Michael Zhang, reporting for PetaPixel: A Virginia federal court has made a decision that photographers won't be happy to hear: the court ruled that finding a photo on the Internet and then using it without permission on a commercial website can be considered fair use. The copyright battle started when photographer Russell Brammer found one of his long-exposure photos of a Washington, D.C. neighborhood cropped and used by the website for the Northern Virginia Film Festival on a page of "things to do" in the D.C. area.
Brammer then sent a cease and desist letter to Violent Hues Productions, the company behind the festival, and it responded by immediately taking the photo down. Brammer then sued the company for copyright infringement, and it responded by claiming fair use. In his ruling, the judge said, "Violent Hues' use of the photograph was transformative in function and purpose. While Brammer's purpose in capturing and publishing the photograph was promotional and expressive, Violent Hues' purpose in using the photograph was informational: to provide festival attendees with information regarding the local area. Furthermore, this use was noncommercial, because the photo was not used to advertise a product or generate revenue."
Brammer then sent a cease and desist letter to Violent Hues Productions, the company behind the festival, and it responded by immediately taking the photo down. Brammer then sued the company for copyright infringement, and it responded by claiming fair use. In his ruling, the judge said, "Violent Hues' use of the photograph was transformative in function and purpose. While Brammer's purpose in capturing and publishing the photograph was promotional and expressive, Violent Hues' purpose in using the photograph was informational: to provide festival attendees with information regarding the local area. Furthermore, this use was noncommercial, because the photo was not used to advertise a product or generate revenue."
Ignorance of the law? (Score:5, Informative)
Uh, what? The basis of copyright law is that everything is automatically copyrighted by the owner. You can't just go around saying that you didn't know and just assume you can use things.
Re:Ignorance of the law? (Score:5, Informative)
Re:Ignorance of the law? (Score:4, Informative)
According to EU law you don't, either.
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To clarify the possible source of confusion here, copyright has only been automatic, and registration unnecessary, since the Copyright Act of 1976 [wikipedia.org]. Older people may have learned different laws before they changed, and not be aware of the change.
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So its only been this way for 42 years? If it had changed in the last decade you'd have had a point. There's been plenty of time to get to know the new rules.
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Yeah, this law existed BEFORE the modern internet. No excuses.
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Copyright is automatic, but I think he may be right that you need to register it before collecting statutory damages. But, IIRC, you can register it before you file the lawsuit, you don't need to register it before the violation.
I'm no lawyer, so this could be wrong, but that's the way I understand it. If you don't register it I think you can only collect the damages that you can demonstrate as actual damages.
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According to US LAW [cornell.edu] You DO have to register to have the full benefits of copyright protection:
411(c), no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for—
(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or
(2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within th
Re:Ignorance of the law? (Score:5, Informative)
Correct. Without registration, you are eligible only for actual damages, not statutory damages. That means if you can prove that you lost money because they did not license the work, they owe you what your licensing fee would have been, plus whatever money they made because of your work. Because they did not sell the photo in question, it is unlikely that the latter amount would have been nonzero, and unless the photographer has a posted rate schedule, it is unlikely that the first amount would have been nonzero, either, which basically makes the entire case moot even without a fair use argument.
That said, IMO, the fair use determination is bogus, and would likely be overturned on appeal. Of course, the actual damages would still be zero, so IMO the photographer would be crazy to pursue this. The right way to handle this would be, rather than send a C&D, to send a bill for a modest licensing fee and request appropriate credit. And then, if they don't agree to the fee, send a C&D. This allows the site owner to save face for what was probably inadvertent infringement resulting from some low-level staffer making a bad choice, and gets you credit for the photo, and possibly provides an opportunity to actually make real revenue by selling prints of the photo via a page linked off of that high-traffic website. Everybody wins.
Trying to go the lawsuit route... everybody loses except the lawyers, unless the copyright is registered, and often, even then.
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That said, IMO, the fair use determination is bogus, and would likely be overturned on appeal.
I would hope so; but a bigger issues many people feel anything they ind on the Internet is free to use. I worked for a company that pulled photos; chic strips, etc. and incorporated it into material we used for training sessions for which we charged (a lot). When I pointed this out one VP said "We found it on the Internet so it is free for use to use..." When I pointed out that much of our proprietary training materials are easily found online does that mean any of our competitors could use it for free, he
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This to me shows one of the problems with photographs and copyright. Many photos have an aspect of artistic and technical competences about them which makes them unique.
Quite a few others are in no way unique, this especially applies to something like a street photo. If 100 people stand in a particular place on a street corner and use a photo capturing device they will produce 100 different photos that are effectively identical except for the metadata on the digital file. How can such a cookie cutter set of
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Because they did not sell the photo in question, it is unlikely that the latter amount would have been nonzero
Not true. Even without a photographer's rate schedule the benefit to the company can be estimated as can the expense they would have had to go through to obtain a similar image.
There have been countless cases with damages awarded where non-professional photographers had their pictures used in a commercial setting without sale of the picture being involved. As much as I hate copyright law, the judge did a real WTF this time round.
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Hang on, if Violet Hues had used say a screenshot from an MPAA/RIAA movie belonging to Sony, Disney or their evil cousins, the "ruling" would have been very different. VH would be 100% gone and the Copyright Holder would be licking their lips in dollars awarded. But not all Copyright Holders are equal... Some lone photographer, "ah s---w them."
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Bingo. It's the same with patents. The law only helps those that are already in positions of power and wealth. It's funny because all the little guys think patents and copyright will protect them, so they cheer on the ridiculous extensions. But it'll never save them from a big team of lawyers and they're more likely to get bitten by it than helped.
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Bingo. It's the same with patents. The law only helps those that are already in positions of power and wealth. It's funny because all the little guys think patents and copyright will protect them, so they cheer on the ridiculous extensions. But it'll never save them from a big team of lawyers and they're more likely to get bitten by it than helped.
It's more accurate to say the law primarily helps those with power and wealth. Occasionally the little guy wins. But on the whole IP law causes lots of economic problems for society, including concentration of wealth. There's an interesting discussion of this topic (with references to a number of economic studies) in The Captured Economy by Brink Lindsey and Steven Teles.
Even aside from the economic considerations, there's really no doubt that current US copyright and patent law is implemented in a fashi
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Not trying to troll, but I am genuinely puzzled by this:
"Even aside from the economic considerations, there's really no doubt that current US copyright and patent law is implemented in a fashion that violates the Bill of Rights. The dual rights to ethical government and ethical practice of law can be asserted under the 9th Amendment (rights retained by the people), and the 10th Amendment (rights reserved to the people). Current patent law violates both rights, and current copyright law violates the right to
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This topic has come up on a number of prior Slashdot discussions: a lot of different people have had a lot of different things to say about it.
One key issue starts from the idea that the right to ethical practice of law is an universal and inalienable right in any society based on the rule of law. As such, it is protected as a right "retained by" and "reserved to" the people by the highest law in the land: when lessor law comes into conflict with the Bill of Rights, the lessor law must yield or the governm
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A person at my camera club has faced this very issue, and instead of suing she just sent an invoice for $5,000 which she claimed was her rate to use the photo.
When the website did not pay, she called in the debt collectors and wound up getting paid.
Re: Ignorance of the law? (Score:2, Informative)
Just because it works doesn't mean it's legal.
SCO did a similar tactic against Linux users. When they made it to court, it turned out they were entirely in the wrong and ultimately the company was destroyed.
Re:Ignorance of the law? (Score:5, Interesting)
They found a picture of buildings which they then cropped. A key point is that they were using it AS a picture of buildings, not as art.
Also they made no money from it and took it down upon request. That doesn't influence the copyright on the photo, but it establishes who the actual douchebag is. Or it establishes good faith if you want to use the term.
I'm more interested in knowing if it's illegal to ever take the "same" photo.
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depends. If you did it without being an attempt to duplicate the photo, then it's likely not an infringement. If you're deliberately trying to recreate that specific image of the subject, then you may have a derivative work.
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Also they made no money from it and took it down upon request. That doesn't influence the copyright on the photo, but it establishes who the actual douchebag is. Or it establishes good faith if you want to use the term.
Gotta love it. They took down is photo, which was more than fair and not required by law. But he had to push it further and lost, setting a precedent that his and others' photos can actually be legally used in such a context with consent.
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IANAL, but I don't believe precedent is set in lower courts.
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Also they made no money from it
Are you seriously trying to claim that the Northern Virginia Film Festival is free and open to the public? I looked at the website and it sure looks like it is a full-blown commercial operation. I don't see what the price of tickets is, but they brag that a portion of ticket sales is donated to some charity. They also brag about the parties and participants and amount of business that takes place there. If this is anything like any other convention the operators charge a good fee to both exhibitors and visi
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I gather the judge disagrees with you.
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You misunderstand. The picture wasn't used to advertise the festival, it was used to show "other things to do while you're in the area". That is, promoting D.C. in general, or rather specifically showing the Adams Morgan area.
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I know nothing of the festival, but just because it isn't free to attend doesn't mean it's a for profit venture. Ticket prices could be to cover expenses.
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I'm more interested in knowing if it's illegal to ever take the "same" photo.
There was a case about that in the UK a few years back. Guy took a photo of a bus crossing a bridge in London. Someone else took a very similar photo and he sued. He won as well because the court found that the artistic composition was the same.
Copyright is stupid.
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That's not true. Fair use lets you use copyrighted materials without the owner's permission, but it's not as simple as "was it for non-commercial use". There are multipronged tests and lots of gray areas. Even for educational use can be not fair use.
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That's why we have appeals in this country.
If the artist appeals this judge will be overturned on federal appeal, he'll be forced to assume it's copyrighted and then reevaluate if it's fair use based on the current criteria (which he might have made a mistake on as well). It may well be fair use, but his comments about not knowing it was copyrighted biased the decision so it will be handed back to him to re-review based on the very criteria listed, it's copyrighted from birth, as everything is automatically
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Prior to a few (about 15?) years ago, in order to enforce a copyright claim, the material had to be declared as copyrighted.
That's where all those little captions came from: "Copyright (letter C in a circle) Jones Corp. 1982"
And in fact courts ruled that the little circled "C" was not enough: it had to have the name of the copyright owner and the year the claim was being made.
But some years back -- pretty recently -- there was a change in the law, an
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That allowed people to sell images to a newspaper. Sell the image to the newspaper for cash. To sell the right to use an image to a newspaper. Still keep the rights for later books, later publication.
The photographer got paid depending on the use of the image they wanted to set.
A quick sale. The use of an image.
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But some years back -- pretty recently -- there was a change in the law, and copyrights became "automatic" or "presumed".
In the US, that happened in 1976.
Now, to be clear: in the old system you still automatically HAD a copyright on any original work you created.
No, before automatic copyright you didn't automatically have a copyright.
Not an unexpected ruling (Score:5, Informative)
A Virginia federal court has made a decision that photographers won't be happy to hear ....
Sorry you don't want to hear about it but Fair Use applies to all kinds of works. Contrary to the implication of the summary though: Fair Use only applies in limited situations. It was very important that the Website's use was for a non-commercial purpose, their use was transformative, the intended use of the expression was to inform rather than simply to entertain or attract attention, and they didn't use the entire work. If any of those factors had been different, then the court may have rejected the website's fair use argument, So this is not the "blank check" to use photos on the internet without permission which the article implies.
Re:Not an unexpected ruling (Score:4, Informative)
The whole point of advertising was to generate revenue. They were advertising the area to bring in tourist revenue. That is commercial use.
their use was transformative
No it wasn't. They took the literal picture and displayed it. The only thing they did was shave a bit off the edges. This is completely different than using ten seconds of a two minute song. What they did was used 1:45 of a 2:00 minute song.
the intended use of the expression was to inform rather than simply to entertain or attract attention
They are using his work to attract the attention of tourists which in turn will generate revenue for the area.
they didn't use the entire work.
See previous comment above.
At this point photographers might as well not bother posting any of their works online since people can freely rip them off. After all, everyone is entitled to steal whatever they want without having to pay the owner for their work.
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The whole point of advertising was to generate revenue. They were advertising the area to bring in tourist revenue. That is commercial use.
The concept of what commercial means is not whatever Mr. smooth wombat's personal opinion is - it is how the law and the courts have defined commercial usage; attracting interest to a geographic location or a subject matter is not "commercial" use. ---- .
The court actually ruled according to the article [petapixel.com] that the usage was non-commercial: because the photo w
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The court doesn’t think there’s any evidence that Brammer was financially harmed by the photo’s use.
This is what they ruled, and that is not consistent with the law.
They used it for commercial purposes. That they claim the owner wasn't harmed is not part of the criteria for fair use, but rather, determining damages.
It is absolutely commercial use, and it should absolutely be appealed for the sake of all photographers out there. This
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I've taken plenty of photos that people wouldn't even pay a few bucks for.
They've still cost me the financial costs of camera equipment, travel and software, the time involved in taking them and the costs of gaining the experience that led me to take that photograph and process it in that form.
This is why I let my friends use my photographs for free but charge companies several hundred pounds.
You're significantly under valuing what it takes to 'snap' a photo. It's very fucking different to the perceived mar
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A bit off the edges? They only used 36% of the original image.That's a pretty hefty shave IMO.
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It could have been one pixel. It doesn't really matter. You know that musicians have sued each other over sampling mere seconds or even blips of sound. Successfully too.
Re: Not an unexpected ruling (Score:1)
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You're conflating transformation with extent of the work used. Transformative use doesn't mean changing the copyrighted work, it means using it in a different way. And it has nothing to do with how much of the work is used.
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"The fucking Harlan Ellisons of Lawsuit Land."
Alas not, Harlan died last week, the photographers are still alive.
Wonder if that will work the other way... (Score:5, Insightful)
When a company or organization appropriates an individual's photo for commercial use, the court found that it's fair use, but I'm betting they'll sing a different tune if it is an individual taking a corporation's intellectual property and have repeatedly found for the corporations in previous cases. To claim something is non-commercial when it's being used to promote your for-profit film festival is bullshit, that's like me screening the latest incarnation of Star Wars to my neighborhood and selling them greatly overpriced popcorn and snacks then claiming it's not a commercial use since I didn't actually sell the movie.
Re: Wonder if that will work the other way... (Score:5, Informative)
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Should require notice of copyright in the form of a watermark
Based on this logic every image not just photos would need a watermark, ditto for any video. Company logo? Watermark. Nat Geo? Watermarks.
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Personally i think the law should require notice of copyright in the form of a watermark or some other means.
While this is a de facto method of preventing infringement, it's automatically copyrighted by treaty that nearly all nations have signed onto.
This requirement you suggest is really bad. If someone crops or removes a watermark and reposts it, it would allow someone else to appropriate that image. You could make a company that all it does is remove watermarks from one of the few countries that is not a Berne treaty signatory, and others could claim it wasn't copyrighted because it had no watermark, ignoring t
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All my photographs have copyright notices in the metadata. That doesn't stop someone from copying them, stripping the metadata (easily done by accident - e.g. uploading to imgur.com strips metadata) and someone else finding that photograph.
Similarly watermarks and other visual elements can be removed.
The copyrights for those photographs remain nonetheless with me.
Sadly in the UK the law doesn't actually support me against companies that might misuse them, due to the Enterprise and Regulatory Reform Act 2013
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don't forget transformative, informative, and not the whole work. Which pieces are you going to cut, and how is what's left informing the neighborhood about your popcorn business?
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I'm going to slightly crop the movie, just like the "transformative" use in this case. I'll just advertise my popcorn business and under "things to do in the area while eating your popcorn" I'll show my cropped Star Wars.
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so you're going to cut out the top half or the bottom?
Showing a still would be sufficient for "things to do in the area", so showing more would likely fail the test.
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When a company or organization appropriates an individual's photo for commercial use, the court found that it's fair use, but I'm betting they'll sing a different tune if it is an individual taking a corporation's intellectual property and have repeatedly found for the corporations in previous cases.
An important part of this decision was the fact that it was non-commercial for a non-profit organization. It meets all 4 of the qualifiers (the stretch there is the "transformative", but being non-commercial alleviates a lot of that issue) and the fact that it was a small crop seems to have made a major difference as well. I don't agree with the decision here, but I can see where the judge's coming from.
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An important part of this decision was the fact that it was non-commercial for a non-profit organization.
Do you have some information that I don't have? Yes, the court ruled that it was non-commercial, since it wasn't directly selling a product (other than promoting the film festival, which I would consider a product), but it appears this film festival is put on by Violent Hues Productions [violenthues.com], which does not appear to be a non-profit. Since the film festival site lists the Violent Hues business telephone number as the sole contact I would argue that the film festival is a commercial operation, promoting Violent
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This also seems like a pretty strong factor:
"Furthermore, the scope of fair use is broadened when a copyrighted work has been previously published. It is undisputed in the record that Brammer previously published the photograph on several websites as early as 2012, and at least one of these publications did not include any indication that it was copyrighted. This prior publication and Violent Hues’ use of the photo for its factual content favors a finding of fair use."
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Exactly. I've heard of school systems getting in trouble for using images they found on the internet for school logos. Clearly, this isn't commercial use, yet they had to stop doing so.
Fair Use (Score:1)
Possibly the court stretched the definition of Fair Use a bit since it was obvious the Film Festival wasn't attempting to sell the photo and and they also quickly removed the photo when asked.
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The court has other avenues available though that wouldn't include a judgement that exposes them to ridicule on the internet.
E.g. they could have agreed that the use of the photograph was indeed wrong and that damages are indeed due. As the photograph was heavily cropped, available only for a limited period, removed immediately on request and incidental to the primary purpose of the site (and related festival) actual damages comprise around $3.
Next case please..
Keys things to take from this... (Score:5, Insightful)
These are key things to consider in this "Fair Use" decision:
1.) Furthermore, this use was noncommercial, because the photo was not used to advertise a product or generate revenue."
2.) While Brammer's purpose in capturing and publishing the photograph was promotional and expressive, Violent Hues' purpose in using the photograph was informational: to provide festival attendees with information regarding the local area.
These are important reasons to consider when it comes to fair use cases.
Re:Keys things to take from this... (Score:4, Insightful)
But it was, it was used to advertise a for-profit film festival.
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It was in a "this is the neighborhood" section. Probably figured the odds of someone deciding to attend the festival based on something in the "what else is there to do in the area" was low.
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Whether this is due to staggering incompetence and stupidity, or just a malicious intent
Any sufficient level of incompetence is indistinguishable from malice.
overstated headline (Score:5, Insightful)
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Exactly. They complied with Brammer's cease and desist, and then he sued them. What a dick. Glad he lost.
copy movies as well? they are just moveing photos? (Score:3, Interesting)
copy movies as well? they are just moveing photos?
Every word of what you just said is wrong. (Score:4, Informative)
The short version: This judge is an outlier; so unless you get this. specific. judge. don't plan to claim fair use.
Long version: https://www.trademarkandcopyri... [trademarka...awblog.com]
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Interesting. Thanks for the pointer :)
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The judge is outside his element. Almost 99.99% of all copyright decisions have been made by the 9th circuit. Essentially the entire court findings on copyright were made by the 9th circuit. These judges in the Virginia circuit likely never see copyright cases and are simply not experienced in its legalities and he tried to find a way for the local defendant to win. The judge found the supreme court test for fair use and misapplied it with several bad assumptions.
If the artist appeals, the decision will be
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he tried to find a way for the local defendant to win
That's probably the most overriding factor.
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Almost 99.99% of all copyright decisions have been made by the 9th circuit.
That is an interesting claim and seems very unlikely. Why have virtually no copyright cases come up in other circuits? Surely there are people pursuing copyright infringement outside of the western states. Do they not appeal their cases to the circuit court level?
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Almost 99.99% of all copyright decisions have been made by the 9th circuit.
That is an interesting claim and seems very unlikely. Why have virtually no copyright cases come up in other circuits? Surely there are people pursuing copyright infringement outside of the western states. Do they not appeal their cases to the circuit court level?
Because the 9th circuit is in the pocket of the corporations holding the IP. It is a corporate friendly court and so corporations holding IP and wishing to sue attempted to get their case heard there. The 9th has pretty much done all they can to gut Fair Use.
Are songs and movies okay? (Score:3)
No really, how is this any different?
question...and answer (Score:2)
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No, a teacher cannot use a copyrighted movie just because it's for educational purposes. That rule would make it awful hard to make educational materials.
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The same reason a lot of drivers broke speed limits and should pay fines... clearly that's not happening, so what is happening?
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No, a teacher cannot use a copyrighted movie just because it's for educational purposes.
Why do you say that?
That rule would make it awful hard to make educational materials.
Not at all, because almost no commercial movies have a legitimate educational use. I'm now wondering about my kid's school showing the students a movie on the last day of school for no educational purpose whatsoever. I wonder if anyone considered copyright issues.
Not sure about this one (Score:5, Interesting)
It seems a little malicious that he sent the c&d, they complied, and THEN he sued them anyway.
I know law has little to do with reasonability, but it would seem reasonable to say:
- you can use pictures you find on the web, unedited, for non commercial purposes
- if the owner sends a cease-and-desist you must remove the image
So this lets people generally use images that they find on the web without too much worry. If a photographer wants to keep their images safe they can just watermark them, stamp their website on them etc. If you edit the image you can be assumed to be trying to evade copyright and be punished accordingly.
That doesn't seem too unreasonable either way?
Some of the reasoning seems a stretch. (Score:1)
Advertising a commercial event is surely commercial.
Isn't this more about mitigation of damages rather than a fair use claim? Anyway, if another photographer passed it off as their own, I could see this. It seems very presumptuous to assume that this was not taken by a professional or a skilled amateur, with desires to become a professional. Removing it as soon as the photographer complained I guess shows good faith but that's all.
Copyright is too restrictive (Score:1)
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And of course generally it doesn't provide a continuing income stream for the heirs and estates, it provides a continuing income stream fro the corporation that bought the rights to the work, in their mind for perpetuity.
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This is part of the "purpose and character of the use" in the four factor test. I think this is more legal precedent than explicit law.
That's not how DMCA takedowns work. This only protects the host. Not the infringer. The intent of the law is the host has no need to confirm copyright status of every upload, but that the copyright h
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