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Stephen Carlisle

On June 11, 2018, another head scratching decision came out of the Eastern District of Virginia, one that has the potential to seriously erode the copyright protections afforded photographers.

The case, Brammer v.Violent Hues Productions LLC , TURTLENECK CREW DRESS DRESSES Short dresses Puma Sale Best Wholesale xXHZ7m8u
has a very simple set of facts:

The Court proceeds to ignore key components of the Copyright Act, disregards readily apparent facts, and once again totally botches the “transformative use” test. In reading the opinion, I wondered if this was the same Eastern District of Virginia judge that botched the fair use test in Philpot v. Media Research Center . Womens San Remocorbeille / Haut Bikini Top Morgan Cheap Sale Visit Cheap Low Price aIhozXgX9
Nope, but clearly something is wrong in that division of the Federal Judiciary. Because, just like the Court in Philpot , it holds that taking an artistic photograph and placing it in an (allegedly) informational context, is a transformative use.

Says the Court:

“Violent Hues’ use of the photograph was transformative in function and purpose. While Brammer’s purpose in capturing and publishing the photograph was promotional and expressive, Violent Hues’ purpose in using the photograph was informational: to provide festival attendees with information regarding the local area. Furthermore, this use was non-commercial, because the photo was not used to advertise a product or generate revenue.” Free Shipping Perfect SWIMWEAR Beach dresses Eberjey Cheap Genuine 7ROb5N4ZC

C’mon, Judge. The Defendants used the photograph because it was artistic and cool. Remember, this is a “time lapse” photograph, which results in moving objects being blurred. The Defendants use was not informational. They used the “cool photograph” to entice people to come to their film festival, e.g. “look at all the cool stuff to do nearby.” Presumably, they charge an admission fee to attend their film festival. This admission fee, again “presumably” generates revenue.

It gets worse.

“In addition to being transformative and non-commercial, Violent Hues’ use of the photo was also in good faith. The record indicates that Mr. Mico, Violent Hues’ owner, found the photo online and saw no indication that it was copyrighted. Mr. Mico attests that he thus believed the photo was publically available. This good faith is further confirmed by the fact that as soon as Violent Hues learned that the photo may potentially be copyrighted, it removed the photo from its website.” 4

Wow. In actuality:

Shouldn’t someone who organizes a film festival (of all things) know this? This is basic copyright 101 type stuff. What’s even worse is that, shouldn’t we have the right to expect that a Federal Judge would know what the law is on a subject that he is issuing a written opinion?

Further down, the Judge repeats his erroneous conclusion that failure to provide copyright notice somehow should weigh against the Plaintiff.

This is a little complicated. Technically, a finished product is a derivative work and no amount may be sold without permission from the copyright owner. However, in real-world terms, if you make one item of something and then get tired of it, most designers would give permission to sell your finished work. This also applies to store models. However, if you are selling more than one product, whether you purchased patterns for each one or not, you are likely creating items with the intent to sell or to make a profit and this is definitely illegal without permission from the copyright owner.

If you would like to sell your finished products, whether for charity or profit, you must get a licensing agreement from the copyright owner. Many craft patterns that are marketed with sales in mind will state their copyright conditions in their patterns. For example, the copyright owner may allow the pattern purchaser to make 12 of these items for sale, but after that, they would need to contact the copyright owner for a licensing agreement.

Note: An important exception to this is patterns made with licensing agreements with companies such as Disney. In most cases, they have explicit terms on their patterns that no finished items may be sold and that they can only be made for personal use.

The general rule is to read the copyright and/or licensing agreement on your pattern carefully. If in doubt, contact the copyright owner or a qualified intellectual property attorney.

In general, no, not without a licensing agreement. By its very nature, a craft pattern implies that the purchaser may make a finished product (a derivative work). However, unless otherwise stated, it is implied that that this permission is for one finished product for personal use. This includes a finished product being given as a gift.

In some cases craft patterns will have detailed copyright statements that will include a set number of products you can make and sell or donate before requiring a licensing agreement. If you cannot find a statement regarding this, or if you want to sell/donate more than the specified number of products, then you must obtain permission from the copyright owner.

What does "for educational purposes under fair use" mean?

This is part of the complicated issue of the fair use laws. There are legal uses for materials. However, this is also an often-misused concept that copyright infringers try to use in a misinformed attempt to work around the law. See Common Misconceptions and Excuses for more information on this. If you would like to claim something as being copied under the "fair use" laws, you must be able to clearly demonstrate that truth of this. Consult an attorny if there is any doubt.

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states: Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include

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