Can developers use photos without permission? A federal court ruling may surprise you.

Published July 3rd, 2018

If you’ve ever hired a web developer to create a website, you might have sent them some of your favorite photos from google images to use for a slideshow or a background. This is a common request. Experienced developers might politely tell you that you need to use licensed photography on your website, and that appropriating photos without permission is tantamount to stealing.

But maybe it’s not so straightforward. A Virginia federal court recently ruled that using photography without permission (in one case at least) was fair use. How can this be?

The case in question involved a professional photographer who believed a website had infringed on his copyright. An informational website about the Northern Virginia Film Festival was created as a local guide for filmmakers, and the photo in question was a photo of the local area. The website was created by the organizers of the festival, yet they claimed the website was noncommercial in nature. The court agreed.

The reasoning behind the judgement seems to be that the work was transformative, and that it was used non-commercially. The photos weren’t actually altered, so how can they be considered transformative? It was the opinion of the court that the work was transformative in it’s purpose, rather than physically transformative. They decided that the photographer’s purpose was expressive and promotional, while the website’s purpose was informational. It’s also worth noting that the film festival took the photo down when requested.

As far as being considered non-commercial in nature, the court decided that the website wasn’t using the photo to generate revenue or advertise, but simply to provide information to filmmakers attending the festival. Those who disagree with the ruling might argue that any time a business creates a website, it is necessarily promotional in nature.

While the ruling is certainly interesting, it’s still best practice for web developers to stick to photography they have licenses for. There’s no lack of freely available images in the public domain, and it could save you the hassle of going to court.