he rights of a stock photographer were recently vindicated when the U.S. Court of Appeals for the Fourth Circuit overturned a controversial Virginia district court decision, which had held that a production company’s use of a stock photo on a website promoting a film festival was fair use. In the decision, Brammer v. Violent Hues Productions LLC, No. 18-1763, published on April 26, 2019, the Fourth Circuit determined that Violent Hues Productions, LLC’s online use of a cropped version of Russell Brammer’s photo of the Adams Morgan neighborhood in a list of D.C. tourist attractions promoting the Northern Virginia International Film and Music Festival failed all four factors of the fair use analysis.
The case arises from the unauthorized use of a photograph titled “Adams Morgan at Night” (seen in the decision in Appendix A), which Brammer shot from the rooftop of a building in the Washington D.C. neighborhood in 2011. Experimenting with various shutter speeds and aperture combinations, Brammer photographed a busy street full of passing cars that appear as trails of red and white lights. He published a digital copy of the photo on his website and on Flickr with a “© All rights reserved” notice, and later licensed the photo for online use.
Years later, in 2016, Violent Hues downloaded the photo—presumably from Flickr, while overlooking the rights notice—and proceeded to crop out the negative space before posting it on http://novafilmfest.com. Brammer discovered the use and sued Violent Hues. After the district court absolved Violent Hues of liability under the fair use doctrine, Brammer appealed the decision, asking the Fourth Circuit to set the record straight.
The Fourth Circuit did just that when it engaged in a thoughtful analysis of the fair use factors. Its decision is instructive as it adds to the wealth of case law on how to interpret the complex and nuanced doctrine of fair use in a case that many thought would have an obvious outcome.
Character of the Use
For the first factor, the court considered whether Violent Hues did anything to “transform” the photo. The court rejected Violent Hues’ suggestion that the analysis should focus on the subjective intent of the parties and instead compared Brammer’s photo and Violent Hues’ use as it appeared on the website, side-by-side. The only obvious change, the court noted, was the cropping, which generally is considered to be non-transformative.
The Court also rejected Violent Hues’ contextual argument, which posited that the photo was transformed by virtue of its placement on a list of tourist attractions. While courts have found minor contextual changes to be sufficiently transformative in two specific instances—when used as raw material for new technological functions (such as in a plagiarism detection service) and documentary uses—the court found that Violent Hues’ copying did not fall within either category.
As Violent Hues’ use of the photo was also for a for-profit film festival, and Violent Hues did not pay the customary fee for its use of a stock image, the court found the first factor weighed against fair use.
Nature of the
The court’s consideration of the second factor focused on the “thickness” versus the “thinness” of Brammer’s rights, noting that some works are closer to the core of intended copyright protection than others (the latter of which, including largely factual works, should be entitled to only thin copyright protection). In an analysis lengthier than most courts’ treatment of the second factor, the court found the photo was entitled to “thick” protection, considering Brammer’s many creative choices, such as the location, shutter speed and aperture combinations, use of vivid colors, and employment of a bird’s-eye-view angle. The Court noted that photos are generally viewed as creative, even if they capture images of reality, and have long been accorded significant protection.
Additionally, while prior fair use decisions like the Supreme Court’s Harper & Row opinion focused on first publication, the Fourth Circuit noted that publication status of the photo was not relevant to the fair use analysis. Unlike in the case of literary works, where the right of first publication is paramount, photos are often intended for repetitive viewing, so the court decided that publication considerations are different in the area of photography. Accordingly, the Court found that this factor also weighed against fair use.
Substantiality of the Portion Used
The court’s analysis of the third factor was predictably straightforward, as it was clear that Violent Hues used roughly half the photo by cropping out the negative space, but kept the most expressive features, i.e., the “heart” of the work. While a substantial taking can still constitute fair use, if it is justified (requiring the court to look back to the first factor), here, the taking was not justified. This factor also weighed against fair use.
Effect on the Market
For the fourth factor, the court considered both the extent of the market harm and whether Violent Hues’ conduct, if widespread, would result in a substantially adverse impact to the photo’s potential market. Here, the court found a presumption of market harm, which exists when commercial use is not transformative. Although, in light of the presumption, Brammer was not required to present any evidence showing the negative effect on the licensing market for the photo, he did anyway, showing that he had received a $1,250 fee in one instance. The court noted that Brammer would have missed out on this fee if the licensee had instead opted to act like Violent Hues. Thus, this factor weighed against fair use as well.
Because all four factors weighed against
fair use, the court’s balancing of the factors, as required by the Supreme
Court’s decisions in Sony and Campbell, was simple: Violent Hues did
not engage in fair use. The court concluded
its opinion with a reminder the there is no difference between copying photos
for print use versus online use: “What Violent Hues did was publish a tourism
guide for a commercial event and include the Photo to make the end product more
visually interesting. Such a use would not constitute fair use when done in
print, and it does not constitute fair use on the Internet.”
While the Fourth Circuit reached an outcome that seemed obvious to many, the stark difference between the district court and court of appeals decisions demonstrates that fair use analyses are not so clear-cut and that both courts and parties must be careful in their application and balancing of the statutory factors. The fair use doctrine is incredibly nuanced, and the case law on the topic is rife with distinctions that must be properly considered in the context of the medium and use at issue. For those who use or post content online, the decision serves as a reminder that not all images posted online can be freely used, and it is important to always review the origin of photos and permissions that may be required and have content licensing practices in place.
Disclaimer: CDAS filed an amicus brief in this case on
behalf of Digital Media Licensing Association, which supported the stock
photographer’s arguments with a particular focus on the fourth fair use factor.
Filed in: Legal Blog
May 6, 2019