In this situation, neither the family nor the photographer took steps to mark that the photograph belonged to someone. If the shop owner sincerely believed the image was generated then his ignorance is bliss (in this situation). Furthermore, the shop owner made new use for the photo. He did not post this on a Christmas card, rather he used to advertise a grocery delivery service. This falls under the act of fair use.
My decision would not be considered differently if this were an educational situation. I do not find the shop owner guilty to copyright violation. His ignorance and intended use make him innocent, in my ruling.
(1/4)
In the law, ignorance is not an acceptable defense. You make an interesting point in the different use, but the image was not changed in any way and was used commercially. Technically, this is a copyright violation because theoretically he made money from its use. However, the international nature of the violation makes it difficult to pursue. In a classroom situation, the transformative principle of a different use would apply.
ReplyDeleteGood thinking on your assessment, though.