By Thomas Long, J.D.
The use was non-transformative, commercial in nature, appropriated the "heart" of the image at issue, and could harm the photographer’s ability to obtain license fees for his works.
A film festival organizer’s use of a photograph of a Washington D.C. neighborhood near the festival’s venue on a website to inform attendees about tourist attractions in the area was not fair use, the U.S. Court of Appeals in Richmond has held. All four statutory factors weighed against the organizer, and, in the court’s view, the use did not pass the "ultimate test" of fair use—it did not serve copyright law’s purpose of promoting the progress of science and useful arts. The appellate court rejected a district court’s determination that the organizer’s use was "transformative," finding instead that the organizer had appropriated the "heart" of the image merely to display its content to promote the for-profit film festival. The professional photographer who owned the copyright to the image showed that the market for licensing the photo would be damaged if the organizer’s exploitative use of it became widespread. The district court’s grant of summary judgment to the organizer on its fair use defense was reversed (Brammer v. Violent Hues Productions, LLC, April 26, 2019, Motz, D.).
Professional photographer Russell Brammer licensed this work as stock imagery. In November 2011, he shot a time-lapse depiction of Washington D.C.’s Adams Morgan neighborhood from a rooftop. The color-saturated photo showed a busy street at night with vehicle traffic rendered as red and white light trails. Brammer published a digital copy of the photo on his website and uploaded it to the image-sharing website Flickr, along with a copyright notice. Brammer had sold physical prints of the photo for $200 to $300 and had licensed it twice for online use, for $1,250 and $750. Brammer applied for a copyright registration for the photograph in September 2016, which he received in July 2017. In 2016, Violent Hues Productions, LLC, which organized the annual Northern Virginia Film Festival, posted a cropped version of the photograph on a website it used as a reference guide for festival participants and attendees providing information about the local area. Violent Hues’ owner contended that he found no indication that the photograph was copyrighted and thought it was publicly available. After Brammer’s attorney sent a cease and desist letter, Violent Hues immediately removed the photograph from its website. Brammer nonetheless filed suit for copyright infringement. Violent Hues asserted a fair use defense. The district court granted summary judgment in Violent Hues’ favor, and Brammer appealed.
Fair use test. The appellate court explained that the fair use defense existed to advance copyright’s purpose of promoting the progress of science and useful arts, and not to protect "lazy appropriators." According to the court, the ultimate test of fair use is whether the progress of human thought "would be better served by allowing the use than by preventing it." To apply this test, the court considered the four statutory fair use factors: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The district court had found that all four factors favored Violent Hues. The appellate court disagreed in all respects.
Purpose and character of use. In order to determine whether Violent Hues’ use of Brammer’s photo was transformative, the court compared the original photo and the secondary use of the photo side by side. In the court’s opinion, this examination showed no apparent transformation. The only obvious change made by Violent Hues was to crop Brammer’s photo to remove negative space. This change did not alter the photo with new expression, meaning, or message. The cropping appeared merely to serve the function of giving the photo the same dimensions as the other images on the website.
Violent Hues asserted that it transformed the photo by placing it in a list of tourist attractions. The court noted that wholesale use of a photo could still be transformative if the photo is placed in a new context and with a different purpose, but the secondary use must imbue the original with new function or meaning. Contextual changes had been found to be sufficiently transformative in two situation: technological uses and documentary uses. Violent Hues’ copying of Brammer’s photo did not fall into either of these categories, the court said. Violent Hues used the image for its content—to depict Adams Morgan—rather than to organize data for new technological functions or to serve the purpose of historical preservation. Violent Hues would not have lost the ability to communicate information about area tourist attractions if it were required to comply with Brammer’s copyright. The court deemed it significant that Violent Hues did not claim that its use of the photo provided any public benefit that furthered the development of art, science, and industry—a key policy consideration behind the fair use defense.
In addition, Violent Hues’ use of the photo was commercial in nature, even though its website did not generate direct revenue or display advertisements. Violent Hues, a limited liability company, used the photo to promote a for-profit film festival. This was the type of use for which others typically paid the copyright owner, and Brammer had sold licenses for stock use of his images. Therefore, Violent Hues’ failure to pay a fee was exploitative and weighed against fair use.
Violent Hues argued that it had acted in good faith. The district court agreed that this assisted its fair use defense, finding that good faith was evidenced by the owner’s testimony that he found the photograph online with no indication it was copyrighted, as well as the fact that upon receiving a cease and desist letter, Violent Hues immediately removed the photograph from its website. This was error, according to the appellate court. The Fourth Circuit explained that copyright infringement was a strict liability offense that did not require a culpable state of mind. Although an infringer’s bad faith could be relevant in some situations, good faith, as such, was not relevant. Moreover, Violent Hues appeared to have acted at least negligently in failing to investigate whether a license fee was required for authorized use of the photo.
Nature of the copyrighted work. The Fourth Circuit next considered the level of protection to which Brammer’s photo was entitled—that is, the "thickness" or "thinness" of Brammer’s exclusive rights. To do so, the court weighed the range of creative choices that were available in selecting and arranging the photo’s elements. In the court’s view, Brammer made many creative choices, such as the photo’s private rooftop location, and shutter speed and aperture combinations. The image was stylized, with vivid colors and a bird’s-eye view, with vehicle traffic in the background appearing as streaks of light. Although the image was taken in a real-world location, that location did not appear in the photo as it did in reality. This creativity entitled the photo to thick copyright protection, the court said, weighing against fair use. The court also decided that the fact that Brammer had published the photo did not weigh in favor of fair use because photographs were frequently created and sold or licensed with repetitive viewing in mind.
Amount and substantiality of portion used. Violent Hues used roughly half of Brammer’s photo, and it removed only the negative space, keeping the most expressive features—the "heart of the work," in the court’s view. "Given that Violent Hues’ use was non-transformative, this considerable taking was not justified," the court said.
Effect on market. According to the appellate court, when a commercial use is not transformative but instead amounts to mere duplication of the entirety of the original work, a common sense presumption of market harm existed. That presumption applied here, the court said, so Brammer was not required to demonstrate that the licensing market for his photo would be damaged if Violent Hues’ behavior became widespread. Still, Brammer had introduced evidence that on two occasions he had licensed the specific photo at issue, indicating that if others adopted Violent Hues’ practice of using the image without paying a fee, the market for this work specifically, and Brammer’s professional photography work in general, could be dampened.
Conclusion. "After examining the four factors, we conclude that none weighs in favor of Violent Hues," the court said. "Considering these factors together, it is clear that the copying here fails the ‘ultimate test’ of fair use: Violent Hues’ online display of Brammer’s Photo does not serve the interest of copyright law." Accordingly, the fair use defense failed as a matter of law, and the Fourth Circuit reversed and remanded judgment of the district court.
This case is No. 18-1763.
Attorneys: David Christopher Deal (Law Office of David C. Deal PLC) and David Leichtman (Leichtman Law PLLC) for Russell Brammer. Thomas Patrick Weir (Kirkland & Ellis, LLP) for Violent Hues Productions, LLC.
Companies: Violent Hues Productions, LLC
MainStory: TopStory Copyright TechnologyInternet MarylandNews NorthCarolinaNews SouthCarolinaNews VirginiaNews WestVirginiaNews
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