July 5, 2018

Hannah Graves

The Copyright Case That Threatens Creatives Everywhere

Adams Morgan at Night by Russell Brammer - All Rights Reserved

We are actively engaged in the fight against image theft, and we’ve seen it all when it comes to copyright cases. However, we were still stunned by the recent ruling of one Virginia judge, over the use of a Pixsy photographers work.

What happened?

Russell Brammer discovered his image had been taken, cropped and used on the website of the Northern Virginia Film Festival. With the help of Pixsy specialist lawyer David Deal, Brammer sued for copyright infringement after the festival claimed fair use.

Having applied the fair use test to the use of the image. Judge Claude M Hilton ruled in favor of the festival - “Because each of the four fair use factors favors Violent Hues, the Court finds that Violent Hues use was a fair use and that there was no copyright infringement.” You can read the entire ruling here.

Why this is important

The court's decision that the use of the image was “in good faith” as it was found online and no indication was available that the work was copyrighted has rightly incensed photographers and other creatives, as well as those of us who work to protect their rights. This is why copyright law exists.

We recently wrote about the US process used for examining fair use. We related it to a complicated case involving an iconic storm cloud and its use by Netflix. Copyright expert lawyer David Deal slammed Netflix’s unauthorized use of the image.

Under United States law (17 U.S. Code § 107)  the “fair use” test is applied using four main factors. (1) the purpose and character of the use (including whether it’s “transformative” and commercial vs. non-commercial) (2) the nature of the copyrighted work (3) how much of the work is used, and (4) how much the use affects the value of the work.

What now?

This recent ruling threatens the rights of creatives everywhere and sets a dangerous precedent. David Deal & Pixsy are taking a firm stance - in response to this bizarre and unexpected outcome.

“To state the obvious, this came as a shock to me given the factual circumstances. I consider the court's reasoning quite dangerous for authors, and more importantly, our clients. Accordingly, I have made the decision to appeal the ruling”. Says David Deal.

Deal goes on to explain that the copyright case is disappointing for many reasons. Including the introduction of factors that have traditionally never played a role in the determination of whether an alleged infringement is considered fair use.  

The judge ruled that the image was used on a commercial website, in a non-commercial way. He also ruled that the image was more informative than creative.

Taking the decision that Brammer had in no way been financially harmed by the “fair use” of his image for “informative” purposes sends a message to creatives everywhere that their work has no value. The fact the image was sourced and then used on a commercial website seems to prove otherwise.

Ready to FIGHT

Pixsy & Mr. Deal are now closely working with Brammer to overturn the decision and have already filed an appeal. We work hard to ensure copyright is upheld. We hope to see this ruling overturned. The first rule of using any image online still has to be- if in doubt, don’t. We’ll keep you updated!

Pixsy represents over 200,000 artists worldwide and stands by our mission - to ‘fight for the rights of artists’.

Hannah Graves

As Pixsy's Product Marketing and Community Manager, Hannah is always keen to start conversations and she loves to make connections! With years of experience working with and advocating for visual artists, she is passionate about fair pay for fair work and enjoys helping to get artists paid, and heard.

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