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IP/Entertainment Case Law Updates

Brammer v. Violent Hues Productions, LLC

Fourth Circuit reverses district court’s finding of fair use in photographer’s copyright infringement case, holding that website operator’s online use of photograph of Washington, D.C., neighborhood did not constitute fair use as matter of law.

Plaintiff Russell Brammer, a photographer who took a time-lapse photo of the Adams Morgan neighborhood of Washington, D.C., at night, brought a copyright infringement suit against defendant Violent Hues Productions after discovering that Violent Hues had used the photograph on its website promoting a D.C.-area film festival without authorization. In a section of the website dedicated to informing festival attendees of things to do in the area, Violent Hues published a cropped version of Brammer’s photograph, which it had found and copied from the image-sharing website Flickr. In June 2018, the district court granted Violent Hues’ motion for summary judgment, finding that Violent Hues’ use constituted fair use. (Read our summary of the district court’s decision here.) On Brammer’s appeal, the Fourth Circuit reversed the district court’s decision and remanded the case for further proceedings.

The court’s analysis was limited to the fair use determination and consideration of the four fair use factors set forth in Section 107 of the Copyright Act: (i) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (ii) the nature of the copyrighted work; (iii) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (iv) the effect of the use upon the potential market for or value of the copyrighted work. Unlike the district court, which found that all four factors favored a fair use finding, the Court of Appeals deemed all four factors to weigh against a finding of fair use.

As to the first factor, the court explained that the primary inquiry is whether the use communicates something new and different from the original or expands its utility—that is, whether the use is “transformative.” The court explained that Violent Hues’ cropping of the photograph did not render the content transformative because it did not give the original “new expression, meaning or message.” It also rejected Violent Hues’ argument that its use of the photograph in the new context—an informational list of tourist attractions—made the use transformative. While noting that contextual changes alone can render a use transformative and fair, the court explained that this has typically been the case in two general circumstances: (1) “technological uses,” where copyrighted works provide raw material for new technological functions (e.g., Google Books); and (2) “documentary uses,” where the copyrighted works may be relevant to conveying accurate representations of historical events. The “informational” purpose of the use in this case was not transformative, the court held, because “such a use does not necessarily create a new function or meaning that expands human thought; if this were so, virtually all illustrative uses of photography would qualify as transformative.” 

The first factor also weighed against a fair use determination, the court held, because the photograph was used on a website promoting a for-profit film festival, and thus was commercial and “exploitative.” Finally, the Fourth Circuit rejected the district court’s determination that Violent Hues’ good faith was sufficient to tilt the first factor in its favor. The Fourth Circuit explained that while a defendant’s bad faith can militate against a fair use finding, it doubted whether good faith could be relevant to the inquiry because copyright infringement is a strict liability offense and because good faith is presumed in the fair use analysis. Declining to take a definitive position on this issue, the court found that Violent Hues had in any event failed to offer any evidence that it acted in good faith or that any subjective belief it had that it was entitled to use the photograph was reasonable. In view of these considerations, the court deemed the first factor to weigh against a finding of fair use.

Regarding the second factor, the nature of the copyrighted work, the court found that Brammer’s photograph was entitled to “thick” copyright protection, as “photographs are generally viewed as creative, aesthetic expressions of a scene or image.” Noting that Brammer made many creative choices in taking his photograph, including the settings that created a stylized image showing streaks of light, the court held that the second factor weighed against a finding of fair use. The court also held that the third factor, the amount and substantiality of the use, weighed against a finding of fair use because Violent Hues had used roughly half of Brammer’s photograph, cropping out the negative space while retaining the most expressive features.

Finally, the court analyzed the fourth factor—the effect of the use on the potential market for the copyrighted work. The court stated that “[a] ‘common sense’ presumption of cognizable market harm exists when a commercial use is not transformative” but instead “amounts to mere duplication of the entirety of an original,” and found that such a presumption applied here. Even absent the presumption, however, Brammer submitted evidence that he had previously licensed the photograph. The court also noted that, were conduct of the sort engaged in by Violent Hues to become unrestricted and widespread, the value of Brammer’s copyright would be depressed. Accordingly, the court found that the fourth factor weighed against fair use.

With all four factors weighing against a finding of fair use, the court held that Violent Hues’ fair use affirmative defense failed as a matter of law, reversing the district court’s grant of summary judgment in Violent Hues’ favor and remanding the case for further proceedings.

Summary prepared by Wook Hwang and Kyle Petersen