Court Rules Copying Photos Found on Internet is Fair Use

This ruling will affect many genealogists who are building or are maintaining web sites:

A Virginia federal court has made a decision that photographers won’t be happy to hear: the court ruled that finding a photo on the Internet and then using it without permission on a commercial website can be considered fair use.

In the United States, whether or not a use of copyrighted material without permission can be considered fair use (17 U.S. Code § 107) depends on 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 market and/or value of the work.

After considering these four factors, District Judge Claude M. Hilton of the Eastern District of Virginia concluded that the paintiff’s use of Brammer’s photo fit the criteria for fair use.

I suspect this is not the final answer. I am certain this ruling will be appealed.

This story has become a major news story. You can find dozens of web sites describing it by starting at:


What festival?


This deserves further reading. Where are the citations?


How can it be considered “fair use’ when the entire photo is used…its not a part of it they are using, its the whole thing…as in whole book, whole article etc…I am a photographer and I don’t post my photos on the interent for this reason…people think they are for anyone to use as long as they are posted on the public interen, but not so…many are art work…as in a painting, drawing etc…someone will appeal and win, hopefully ! otherwise anyone can use your candid shots of your family for whatever…how would you like yours showing up on a greating card without your permission !


This is a very misleading title and article. Whoever wrote that quote obviously is clueless about this case. This is NOT what the court ruled. The court ruled, that a highly cropped version of a single photograph, which had been previously published online without any copyright information, passed all four tests of fair use. It did not rule that all, most, many, or any other quantity of photographs may be used by anyone, anywhere, for any purpose.

All that said, most people can use photographs found on the Internet, or anywhere, for limited non-commercial purposes fairly without paying fees. This is not advice, as it’s dangerous, risky, and potentially economically devastating to just use photos willy nilly. Fair use is a DEFENSE. You have to prove fair use, and that can be costly. Also not all nations have fair-use defenses to copyright. If you violate the copyright of some French or German photographer, you could be in real trouble.

This article is everything wrong with the common (mis)understanding of copyright by the general population, and some poor soul will find out the hard and expensive way due to irresponsible journalism like this. PS that great snapshot you took of great-grandma isn’t going to get much protection against use and fair use claims, unless you’re selling them at a good clip, and spent the $100+ to file a copyright on it. That old picture of great-grandpa from 1910 is public domain, so you aren’t going to get royalties on that, and I bet you don’t own whatever original copyright you did have.

Fear, Uncertainty, Doubt. It’s a good way to drive traffic to a website, but bad at providing real, factual, and usable information to the community.

Liked by 1 person

Judy G Russell, The Legal Genealogist, has a very clear summary of the limitations of this ruling.


Memorandum Opinion in Brammer v. Violent Hues Productions (No. 1:2017cv01009 – Document 69 (E.D. Va. 2018)) is here (i.e., horse’s mouht):


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