Thursday, July 5, 2018


There's a piece going around about some judge's opinion of a certain usage of a certain picture as "Fair Use". I saw it first on PetaPixel, but it's been on reddit and dpreview, and no doubt is all over the internet everywhere. If you look around for "Violent Hues Copyright" I dare say you will find 400 places where it's being talked about.

The comment threads this thing has spawned are both fascinating a depressing. Mostly people have no idea what they're talking about, and there's a whole muddle around some side remark the judge made about the alleged infringer "not knowing the picture was copyrighted" which is being utterly misconstrued. Violent Hues (the alleged infringer) clearly knew, by the time they claimed "Fair Use" as a defense, that there was a valid copyright in play (see below). The "not knowing' issue is very much a sideline, either entirely irrelevant, or at best speaking to the basically decent and fair-minded intentions of Violent Hues.

In the first place, it's clear that many photographers out there who pretend to understand copyright don't know what Fair Use is at all. While it's complicated, an essential and easy feature of it is that it applies to copyrighted works. If I claim to be using a thing "as a Fair Use" I am acknowledging that a valid copyright exists. If a judge rules that something was used as a case of "Fair Use" the judge is likewise acknowledging the copyright. There seems to be a lot of notion that Fair Use is somehow the opposite of a copyright, and that since photographs are all copyrighted by default there can be no such thing as Fair Use. This is exactly wrong.

The second, larger and more interesting, theme is that photographers seem to feel that Copyright is essentially the secular law recognizing some kind of unalienable right, one imagines granted by God, perhaps in the form of some stone tablets, to total control over any and all uses of the copyrighted object. Copyright is, in the eyes of many a photographer, simply the law of the land regulating their infinite and just power over the picture (oh, excuse me, the "image") they just made.

This is also wildly wrong.

Copyright exists to provide incentive to people to create those things which are subject to copyright, by allowing them a good and just portion of the usage of that work. It is not an infinite box of power. It is an agreement with the creator, that the creator will create in exchange for a certain, large, degree of control. The reason society enters into the agreement is because society, as a whole, feels that it is a good thing that creators create. If the creator were to simply have infinite control, the benefit to society would be curtailed. Society, in effect, exchanges the control granted by copyright for certain social benefits, which turn up as limitations on that control.

Copyright on photography is particularly problematic, because it seems that only photographers seem to think that the photographer is, as a rule, the sole creative force in play. The model? No rights. The architect? None. The park service which maintains the landscape and the trails that lead to it? Nothing. The guy who presses a button? All of it. Photographers, let us be quite clear, are jolly well lucky to enjoy the protection of copyright.

The doctrine of Fair Use is one of the limitations on the control copyright holders enjoy. Compulsory licenses are another limitation.

As a some-time critic, I happen to think Fair Use is a really good idea.

More generally, the creation of the new often rests upon what was created before. If all creators were permitted to simply retain their work entirely within a sealed silo, without connection to anything else, then not much new would get created at all.

Also, Internet Photographers are idiots.


  1. Well, there is fair use and there is not so fair use. I've had two cases where people have passed off photos of mine as their own and even exhibited them. Hardly fair use, and I am sure the concept of 'copyright' never entered the perpetrators' heads. I have a hard enough time selling my work as it is, without some fraud trying to muscle in.

    Models do have rights. Portrait rights, for instance. That is why photographers ask them to sign model releases if publication is intended. Some of them even get paid for their trouble. And all sorts of organisations (national parks, museums, cathedrals, open-air public spaces in private ownership) require paid permits for commercial photography, if they allow it at all.

    As I'm sure you already know, there are dissenting legal voices with respect to the verdict in Brammer vs Violent Hues, based on the claim that the court did not understand how to apply Fair Use principles. See yesterday's DPR ...

    1. Yes, as far as I can tell the decision is a little sketchy. There are indications that the judge is in part sticking it to a photographer who was up to some shenanigans (he registered his copyright too late to get punitive damages, and tried to get them anyways).

      And, of course, copyright IS a substantial sheaf of rights, often inconveniently violated. Quite possibly even in this case.

      I am more interested in the attitudes about copyright that are so broadly displayed in the comment threads, though!

  2. For many people, I think this distills down to my copyright is sacrosanct, whereas your copyright ... eh, not so much.