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The Intellectual Property StrategistFeaturesCopyrightsIntellectual PropertyLitigation

Fourth Circuit Rules that Website's Unauthorized Posting of Stock Photograph Was Not 'Fair Use'

By Michael W. Mitchell and Edward Roche 
November 01, 2019

Hundreds of millions of photographs are posted online every day. As the U.S. Court of Appeals for the Fourth Circuit recently noted, "the Internet has made copying as easy as a few clicks of a button," and users frequently copy photographs for business or social purposes. When doing so, users should be aware of the risk of liability for copyright infringement. The Fourth Circuit's decision in Brammer v. Violent Hues, No. 18-1763 (Fourth Cir. April 2019), sheds some light on when re-posting will be a "fair use" and when it will give rise to liability.

As the Brammer decision demonstrates, whether a use is "fair" can be a complex question. Based on the particular facts of the case, the court ruled that the re-posting of a stock photograph did not constitute fair use. The opinion gives guidance to those creating and re-using online photographs, but also leaves some gray areas.

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