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 sheds some light on when re-posting will be a “fair use” and when it will give rise to liability.
The creator of an expressive work—a photograph, video, movie, book, play, piece of music, or architectural design—owns the copyright to the work. The copyright holder has a number of exclusive rights, including the exclusive right to reproduce the work or create “derivatives” of the work. The holder may have a claim against anyone who copies or re-purposes the work without permission. If others want to use the work, the copyright holder may charge them a license fee.
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