There’s Infringement, and Then There’s Infringement.

Beautiful photo, isn’t it? It’s not mine. I got the picture from a friend (thanks, man!), and I’m reproducing and publicly displaying it here with his permission. Suppose that I didn’t get that permission, however. Would this constitute copyright infringement?

I think two different but related questions are wrapped up in that one query. In the first, I’m asking whether I violate USC Title 17 or the US copyright laws by using my friend’s photo without his permission. The answer to this depends on whether my use may be excused through either a Fair Use or de minimis  defense.

Now suppose that the answer to the above is “yes”. Suppose that I am indeed guilty of copyright infringement by using my friend’s photo. Then the second question, the more immediate question, perhaps the question many people are actually asking is, “can I use the photo without consequence?”.

An affirmative answer to the first question doesn’t preclude a nod (and wink) to the second. For instance, in the hypothetical case where I haven’t gotten explicit permission from my friend to use his photo, I may nonetheless hold an accurate belief that he wouldn’t mind my posting it on my blog. He freely published the photo for all to see and may well be more interested in people appreciating his photo than clearing rights with him before exposing it to a different audience. Alternatively, I may count on the fact that being my friend, he wouldn’t litigate or take other nasty actions against me. Or, perhaps I’m not a very good friend, and I’m opportunistic calculating that I can “get away with it” because my friend is unlikely to stumble onto this blog and find out that I’ve filched his photo.

Conversely, suppose my friend and I at some point have a falling out (all hypothetical!). Then even if I had previously gotten his permission to use his photo, considering that I didn’t go to the lengths of using a written license to formally record his assent to my request, he could now claim that I had infringed his copyright after all and tries take me to the cleaners for all my worth. (Particularly unpleasant ex-friend there!)

In sum, there’s copyright infringement, and there’s copyright infringement. There’s copyright infringement that may be engaged without (foreseeable) consequence, and it’s plausible that most people would think of that as practically not infringing. After all, we all jaywalk sometimes, but without consequence (a ticket, being hit by a bus), we don’t really think of that as breaking the law. On the hand, there’s good faith use of creative content that may ultimately be deemed copyright infringement because of the gaping flaws in the law, e.g .the high costs to defend one’s Fair Use case in court.

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