When Fair Use Isn’t Fair

The courts, particularly in the United States, set new precedent every day.  A lot of those decisions relate to who should benefit from what transaction and how much.Expensive

And here’s the disclaimer:  this is not a legal opinion or even a legal review.  It’s a commentary on a specific example of legal precedent as related to photography.

Just as copyright law and precedent is solidifying and establishing boundaries for photographers’ rights, some court rulings open the opposite door, establishing precedent that illustrates when a photograph can be used without permission or compensation.  Where do you sit on this issue?


The whole notion of “fair use” is one of these contrary precedents.  Fair use is a concept that has been established in the United States for over a hundred years as a argument that no copyright can be absolute.

For example, in a society where free speech is sacred, the ability to quote previously published pieces and offer alternative views is a fundamental right.  The ability to use previously published images in a news article to illustrate an injustice or a contradiction is also recognized as appropriate.  And today’s society, the widespread sharing of and commentary on images in social media also ventures into the rights of a free society to debate its own practices and behaviours.

But what about charitable work?  What about educational efforts?  Yes, the precedents around fair use indicate that previously published and copyrighted material can be quoted by or appear in the works of such groups under specific circumstances.  It seems time and court challenges have established a four factor test (first established in the 1800’s and refined over time):

  • Purpose and Character of the Use – also known as Transformative Use
  • Nature of the Copyrighted Work
  • Amount and Substantiality
  • Effect on the Work’s Value

LicenseTransformative use relates to what was done with the copyrighted material.  Was it only referenced to prove or disprove a point?  Was it changed in any way to incorporate it into something else, such as a montage of activities at a public event?  Was it used to advertise an upcoming activity or event?  Was it used to enhance a commerical offer for a product or service?  The last two seem to get the most scrutiny, as they relate to the tangible benefit (i.e. money) that the erring entity might have received from using the materials.

Nature of the work relates to the type of work that was used.  Was it a quoted passage of text, an image or other creation?  How unique was it?  How much effort went into creating it initially?

Amount and substantiality relates to how much of the work was used.  Was a text quoted in full, in part or paraphrased?  Was an image used in full or cropped or used peripherally?  Was it the principle element in the unauthorized use or merely a subplot?

Lastly, and arguably the only element that really matters, what effect does the use have on the current and future value of the work?  Was it meant to be launched on a specific occasion that has now been compromised?  Does it commemorate a specific event?  Would it be a more commercially valuable piece had it not been used unexpectedly?  Has the reputation of the creator in any way been damaged as a result of the use?

Brammer vs Violent Hues

Fair use came into view recently because of a court case in July 2018 in which a Virginia judge ruled that the unauthorized use of an image found on the Internet to advertise a Film Festival was fair use.  That was because it was used as information, not art, was used non-commercially, was used with a good faith belief that it could be used, was presented factually with only a crop, and did not result in harm to [the photographer’s] potential market.

That ruling was overturned this past week and sent back to court for retrial.

I must admit that I’m of split views on this development.  As a photographer, I absolutely agree that use without permission for any commercial purpose, even if the entity using the material is not themselves benefitting, should be prevented.

But this precedent now applies to any entity that finds images on the Internet, including those entities that seek to raise funds for worthy causes, seek to enhance community participation, or seek to inform and educate the public.  To quote from Star Trek – “Sometimes the needs of the many outweigh the needs of the few.”  Purchasing images is often beyond the ability of these entities.  And certainly the cost and time to argue these uses in court would not be an option.  Fortunately, many of these organizations do contact the owner of the image(s) and ask for permission without compensation.  Also fortunately, many of the photographers do agree.

audienceAnd what about those of us that share photographs, both on social media and in closed circles?  I belong to several camera clubs and we routinely circulate and even give presentations that include images we admire, both to plan future projects and to study and learn from them.  Does that qualify as fair use?

Absolutes are never the right solution for any dispute.  I’m glad the precdent of fair use exists as an option to a creative’s right to profit, especially when that use in no way affects their ability to profit.  Hopefully it will continue to be applied in a reasonable and measured way.