The federal appellate court in Virginia today reversed a decision that had allowed a website to use a stock photo to illustrate its content without permission. A website promoting a local film and music festival included a stock photo of a street scene in the Adams Morgan section of Washington, D.C., as part of a listing of surrounding sites tourists might visit. The website claimed that it did not know that a photo captured “through a Google Images search which led to the website Flickr” was “copyrighted.”
The website asserted a number of defenses, all of which were rejected by the court: (1) the absence of any copyright notice, (2) that it was an innocent mistake, (3) that it cropped the photo, (4) that it used only one half of the photo, (5) that the photo had been published, (6) that the photographer was still able to license the photo to others, (7) that it used the photo to convey information about the subject, and (8) that it used the photo as part of providing its own information that the subject of the photograph was worth visiting. These last two arguments were an attempt to make the use a “transformative use.” The attempt failed.
The leading case concerning repurposing of photographs without permission was decided by a federal appeals court in New York in 2013. There, an appropriation artist, by his changes to “composition, presentation, scale, color palette and media,” sufficiently transformed the underlying photos to make the resulting works different in artistic purpose and value. Here, the website’s addition of using the photo to identify and illustrate the subject as a tourist attraction was not enough of a transformative use to make it a fair use. The court noted that virtually all use of stock photography includes an added purpose of illustrating the text or reinforcing an idea.
The teaching of the New York case is that “the ‘ultimate test’ of fair use is whether the progress of human thought 'would be better served by allowing the use than by preventing it.'" The website could not claim that its purpose in communicating information about the tourist attraction would be hindered if it could not use the photograph. There was simply no justification for permitting free use of the creation of another artist to accomplish its expression.
Web sites are no different from other media in needing authorization to use photographs to illustrate their content. Fair use for documentary purposes is limited to a where there is a compelling need to use a specific photograph in order to present an “accurate representation of historical events," usually in “scholarly, biographical, or journalistic” expressions, and almost always “accompanied by commentary on the copyrighted work itself.” All other uses should generally be with permission.
"[C]opyright law embodies a recognition that creative intellectual activity is vital to the well-being of society," and fair use exists to "stimulate creativity and authorship" of derivative but new works -- Hon. Pierre N. Leval