Blogger defeats photographer's copyright claim

https://blog.ericgoldman.org/archives/2026/06/blogger-defeats-photographers-copyright-claim-sokolskyfilm-v-messiah.htm

by speckx • 1 month ago

99 77 1 month ago

blog.ericgoldman.org

tancop• 1 month ago

another day another reason why copyright should be for commercial use only (yes that means piracy will be legal). you can throw out entire categories of bad faith cases. art stealing companies still have to pay up and its easier to get what you deserve as an artist when the courts not filled with a backlog of useless low value claims.

jdlshore2• 1 month ago

This blog had a commercial purpose, according to the article.

thewebguyd• 1 month ago

That would be great. I'm a photographer outside of my day job, and commercial use is really the only thing I give a crap about. Use my photos by all means for whatever personal use or reasons you have, I (and I'm sure other copyright holders as well) really only care when someone is using the work in direct competition with my/their own business.

Personal/non-commercial use should be fair game for everything for everyone.

kmoser• 1 month ago

Lots to comment on but this stood out:

“A lawsuit like this heightens the demand for Generative AI replacements.”

Most generative AI corpora were arguably trained on copyrighted material, making the output potentially infringing.

FanaHOVA• 1 month ago

There is plenty of precedent being written here. It does not seem to be the case at all for the average use of this technology.

https://www.congress.gov/crs-product/LSB10922

rectang• 1 month ago

Even if the specific image being infringed were not in the corpus, it's possible that a court would return a judgment of copyright infringement.

Consider the case where someone deliberately prompts the AI to build a facsimile image and the AI does a creditable job after some tweaking.

ralph84• 1 month ago

Except everyone who has tried to argue that in court has lost.

jagged-chisel• 1 month ago

Has this been argued? I'd love to read some actual court decisions.

CrimsonRain• 1 month ago

same goes for anything you output :)

jterrys2• 1 month ago

Ye olde double edged sword

On one hand aggressively punitive copyright claims stifle creativity and innovation in transformative art. On the other hand, generative AI reopens that transformative creativity.

tadfisher• 1 month ago

Reminder that the original copyright term was 14 years, with a single 14-year extension.

If this were still the norm, it would feel crazy that blockbuster movie studios are still recycling comic book characters from the 1950s.

bawolff5• 1 month ago

Most generative AI corpora were arguably trained on copyrighted material, making the output potentially infringing.

Training is not neccesarily sufficient for it to be a derrivative work, just like if you learned to draw based on famous drawings doesn't mean every single drawing you ever made is infringing.

Obviously there are cases where it could be infringing, its going to depend how close the output is to the original.

I guess it depends on how you read the post, is it saying use gen-AI to intentionally recreate the photo, something that sounds danger-zone, or are they saying use gen-ai to make some other photo suitable for purpose?

ghaff2• 1 month ago

I'm largely out of this space now but my understanding is that some copyright cases around model training are winding through courts but I haven't seen anything definitive come out. The IP lawyers I know are skeptical but we'll see.

lelandfe• 1 month ago

Sometimes human writers sit down to write and accidentally end up verbatim reproducing an NYT paywalled article, too, and no one bats an eye, but AI does it and allll of a sudden we’re in court? Poppycock!

LoganDark• 30 days ago

Training is not neccesarily sufficient for it to be a derrivative work, just like if you learned to draw based on famous drawings doesn't mean every single drawing you ever made is infringing.

We don't know that model training is the same thing as inspiration. Training is a mathematical process with theoretically deterministic outputs. It's converging the weights towards being able to exactly reproduce the training data, rather than parts of the training data subjectively influencing a creative output. We will just have to see how this plays in court.

arjie• 1 month ago

I was struck by the fact that the blog post had 43 views. With such low stakes, how did this case make it to federal court and reach summary judgment???

Yeah, fascinating that a 43-view blog post would go all the way to the federal court like this. Surely the plaintiff often has people give up and pay because they fear the case? Otherwise the economics of chasing down copyright violations of this scale surely don't make sense.

jdlshore2• 1 month ago

It was a prior case that 44 views, not this one. But this one was similar in its low view counts.

snapetom• 1 month ago

Years ago, like around 2000, I had a personal blog where I mentioned a local TV celebrity talking about something. The post was about 90% the topic, but in referencing the guy himself, I said something like, "this guy's cool." The local celeb had a trademarked moniker "The Car Czar," and I used it in reference to him.

I swear, on a busy week I had about 5 people reading that blog and they were all coworkers. The next day, I had a 6th visitor from Los Angeles and got excited. Who was this mysterious visitor? I found out when I opened my email and saw a C&D from Universal's lawyers saying I was abusing the trademark.

I blogged the next day, "Wtf, Universal?" and a few days later, got an email from the local celeb apologizing for the overzealous legal team. He was indeed totally cool about it.

bawolff5• 1 month ago

Economics could make sense if they outsourced the enforcement and the enforcement company gets paid regardless of how prolific the usage is. Don't know if that is what happened in this case, but seems plausible.

gedy2• 1 month ago

Image in question: https://static-assets.artlogic.net/w_1600,h_1600,c_limit,f_a...

lexicality• 1 month ago

Hell of a photo, it almost looks like an oil painting!

ChrisMarshallNY4• 1 month ago

What uniforms are those?

They sort of look like WWII Nazi uniforms, but they aren't.

Maybe they are made-up?

Hikikomori• 1 month ago

Looks more Soviet.

gedy2• 1 month ago

It's a fashion photo by Melvin Sokolsky, taken in 1962. Looks like Soviet Red Army uniforms, but since artist is American/New York and given the year probably all prop clothing.

mock-possum• 1 month ago

there is a dearth of evidence on the record that Messiah knowingly failed to credit the Photographer when she posted the Parker Train Photo on her blog ... Messiah merely found the Photo on Google Images by searching “army fashion,” saving the file on her computer without altering the Photo or the filename, and then publishing the Photo on her blog. She testified that at that time, she looked for a watermark, could not find one, and had no knowledge of the Photographer. She also testified that the filename, “Melvin-Sokolsky5.jpg,” was provided by the source website and she did not know it referenced the Photographer.

That’s a bit rich, isn’t it? Why did she not simply search the file name, nevermind reverse image searching the photo itself? Since when is ignorance an excuse - especially in a case like this, when claiming ignorance/negligence could easily cover for deliberate intent?

advisedwang• 1 month ago

Since when is ignorance an excuse

Since 1998. This is a claim under 17 USC 1202, created by the DMCA, which explicitly says requires intent.

poly2it• 1 month ago

Do you search the name of the photographer every time you download a creative commons image? The vast majority of people simply do not care about copyright.

doctorzook3• 1 month ago

This seems... troubling to me.

Essentially, the judge found that this qualifies as fair use because (a) publishing this with commentary is "transformative" even through "Defendants used the exact, unaltered [photo] in the blog post"; (b) "the blog post is not focused on the [photo]"; and (c) "there is no indication that [the use] impacted or has potential to impact the market or value of the Photo".

As an amateur photographer, this doesn't give me warm fuzzy feelings about posting anything I shoot online. By the reasoning here, a company (as in the commercial site here) can use my photos so long as the use is incidental and doesn't earn them too much money -- or at least impact my revenue, which is currently $0.

Heaven help me, though, should I misuse a corporation's copyrighted works, even purely personally.

msabalau• 1 month ago

Somehow we'll all have to endure a world where you don't post your amateur photos online because you are "troubled" that you might not be able to shake down a personal stylist for incidental use on their blog.

bawolff5• 1 month ago

By the reasoning here, a company (as in the commercial site here) can use my photos so long as the use is incidental and doesn't earn them too much money -- or at least impact my revenue, which is currently $0.

That is how copyright has worked since forever. This isn't something new. Copyright is primarily about protecting your ecconomic rights (and attribution rights. In some countries also the integrity of the work). Its not meant as a way for you to fully control what happens to your creative output.

This particular case does seem very borderline though, if you are selling (or potentially selling) your photos, them using it as an illustration without permission is something that would be commercially negative to you and speak against fair use. I wonder to what extent the judge wasn't thrilled to be bothered by something with so few views and as a result was more sympathetic to thd blogger. I'm somewhat doubtful this would go the same way if it wasn't about something so inconsequential.

doctorzook3• 1 month ago

If a company stops publishing a book or piece of software, is it free to share because there's no longer an economic interest?

dofm2• 1 month ago

Copyright is primarily about protecting your ecconomic rights

One of those economic rights, somewhat inconvenient to your argument, is charging for editorial usage.

The entire function of what remains of the stock photography economy relies on the basis that usage can be billed for. Not sure how else a photographer is ever going to earn money.

If we get to "it's not as if you were making money out of it before" as an argument, which this is approximate to, then the ability to earn as a photographer is destroyed.

fsckboy• 1 month ago

Copyright is primarily about protecting your ecconomic rights

no, copyright is about creating an economic right where one didn't exist before.

RobotToaster3• 1 month ago

Its not meant as a way for you to fully control what happens to your creative output.

Most countries deal with this under moral rights[0], but these aren't really protected in the USA.

[0]https://en.wikipedia.org/wiki/Moral_rights

j-bos2• 1 month ago

Let's not forget this was a photo of a painting.

anonred• 1 month ago

It is not. https://www.artsy.net/artwork/melvin-sokolsky-parker-train

kmeisthax2• 1 month ago

I think the judge was just reaching for an excuse to kill the lawsuit.

The reason why Fair Use exists is because we have a copyright law, a First Amendment, and common-law courts that are empowered to legislate from the bench[0]. That last bit is important: everything the courts rule can potentially become new law that binds the hands of future courts. This means the court needs to be careful when issuing their ruling.

They can't rule that the statute of limitations has passed, because the files were hosted continuously on a web server. If they did rule this way, then any online infringement can become unprosecutable so long as you keep the website up for 3 years before anyone notices.

They can't rule that it's de minimus. The whole photo was used.

They can't rule innocent infringement[1] because that requires specific facts that are not present in this case.

Normally in this sort of case, the courts would rule that a crime had been committed but not award any damages. Unfortunately, Congress decided that if you register your copyright, you are automatically entitled to an insane damage award. Otherwise, it would never be financially profitable to sue for copyright infringement in all but the most airtight cases, and copyright would be unenforceable.

The next available legal tool to dismiss the case is Fair Use, and that is so fact-intensive that you can get particularly arbitrary with what is and isn't binding precedent. In particular, the market usurpation factor (part C) can be adjusted to emphasize or de-emphasize the harm done to the original work. If a blogger uses a photo for a blog post with 43 views, there is no potential of market harm. If that same blogger gets a million views, then suddenly there IS a market harm and the courts will be more favorable to you.

My personal opinion is that the statutory damage award for registered copyright was a really fucking stupid idea. People who do not have a constructive[2] revenue stream should not be on the hook for damages they can't pay. If you want your photo off the blog post, that's one thing; but you shouldn't be able to demand life-ruining sums of money from legally careless bloggers.

Why? Because that's the basis of a very long-running extortion scheme that has been enabled by our copyright system. It started with the RIAA suing grandmas whose kids downloaded KaZaA, and only got worse from there, involving criminal enterprises started by lawyers who would upload fake porn to The Pirate Bay and then extort people who downloaded it. Really, there needs to be some kind of legal cutoff to immunize the ordinary man on the street from this bullshit while still allowing lawsuits against people actually involved in creative industry. But Congress hasn't bothered doing that. So the courts have to make it up as they go.

[0] You may have heard that certain other countries "don't have Fair Use". This is facially true because they aren't common-law countries, not because they don't have free speech. In civil-law countries the role of Fair Use is instead taken up by legislatively-granted exceptions to copyright.

[1] There is a specific defense to infringement called innocent infringement that the defense can use if they have evidence that they attempted to license the work in question.

[2] "Had or should have had", "known or should have known", etc. In law, a judge can coercively impute all sorts of things "constructively". You can have constructive knowledge, owe a constructive debt, etc.

RobotToaster3• 1 month ago

You may have heard that certain other countries "don't have Fair Use". This is facially true because they aren't common-law countries

The UK is a common law country and technically doesn't have fair use. We have "fair dealing" exceptions, but these are stricter in than American fair use. This is in part because the laws originated from EU legislation which is normally written to suit Napoleonic law countries...

leephillips3• 30 days ago

“life-ruining sums of money from legally careless bloggers” is deterrence. Don’t do the crime if you can’t .....

z3c0• 29 days ago

Heaven help me, though, should I misuse a corporation's copyrighted works, even purely personally.

This imbalance is the issue. The photographer attempted to use a fraudulent system designed for the wealthy. Hopefully the loss disillusions those among us hoping for scraps. As an amateur photographer, post all you want, and expect nothing in return. If you shoot digital, keep your raw files to harvest lower-fidelty, online-ready formats. If you shoot film, you have both the scans and the negatives.

mchusma• 1 month ago

I guess AI images only for me from now on. Why open yourself up for the hassle?

leephillips3• 30 days ago

The language of the article is strongly biased in favor of people stealing artwork: “photographers should stop suing bloggers for copyright infringement!”

The plaintiff gets scolded for not trying to settle. But, by the article’s own account, the defendant ignored emails from the plaintiff!

Photographers should not stop suing if that’s what it takes. People should stop stealing.

nerdsniper• 30 days ago

Wow:

Remarkably, the opinion doesn’t mention the statute of limitations at all, even though the original post had been published no less than 14 years earlier (I’m crediting the 2011 blog transfer as a possible republication). This silence reflects that the statute of limitations doesn’t functionally exist in online copyright law any more. Each new view/download nominally constitutes a new infringement, in which case the SOL resets to the most recent visit to the post.

Blogger defeats photographer's copyright claim

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