Last June, one of the worst fair use decisions I’ve ever read came out of the Eastern District of Virginia, in Brammer v. Violent Hues Productions. The mere mention of this decision in a room full of copyright attorneys would elicit an audible groan (and maybe even a few explicit mumblings).
The defendant, Violent Hues Productions, organizes the Northern Virginia International Film and Music Festival each year, and created a website to provide festival-goers with information about lodging, transportation, and things to do in the area. In 2016, a photograph taken by the plaintiff, Russell Brammer—which was a time-lapsed depiction of D.C.’s Adams Morgan neighborhood—was posted on the website without his permission. After discovering his photo on the site, Brammer sent a demand letter requesting the photo be removed, and filed a lawsuit for copyright infringement. In a stunning decision, a judge in the Eastern District of Virginia granted Violent Hues’ motion for summary judgement, calling the use of the photograph a fair use. The most appalling part of this decision was perhaps the fact that the analysis of each fair use factor was so far off base. This is one of those cases where it seems like the court went into it wanting a certain outcome and tried to shape its analysis of the law to support that outcome.
What’s so unfortunate about cases like this is photographers and other individual creators often cannot afford to hire an attorney and litigate a copyright infringement case in federal court, and when they are able to afford it, decisions like this can act as a further deterrent. But in this case, Brammer was able to appeal the decision, and this time, the court got it right. In an opinion issued on April 26, the U.S. Court of Appeals for the Fourth Circuit reviewed the decision de novo, examining each factor anew, and reversed and remanded.
Factor 1: Purpose and Character of the Use
The district court determined that the first factor weighed in favor of fair use, stating that Violent Hues’ use was “transformative.” According to the court, “While Brammer’s purpose in capturing and publishing the photograph was promotional and expressive, Violent Hues’ purpose in using the photograph was informational: to provide festival attendees with information regarding the local area.” Talk about a stretch. For starters, it’s unclear exactly how Violent Hues’ use of the photo would convey any information not conveyed by virtue of the photo itself. Additionally, as the appeals court points out, Violent Hues’ wholesale reproduction of the photo was a use identical to the original purpose of the photograph—i.e., “to depict Adams Morgan.”
The first factor also takes into account whether the use is of a commercial nature. The district court, in an unduly narrow conception of commerciality, found the use to be non-commercial “because the photo was not used to advertise a product or generate revenue.” As the appeals court pointed out, Violent Hues “used the Photo on its website to promote a for-profit film festival” and did so without purchasing a license, despite the fact that “it is customary [for a commercial enterprise] to buy licenses for use of appropriate stock imagery.”
The district court concluded its analysis of the first factor by stating that Violent Hues used the photo “in good faith” since he “saw no indication [that the photograph] was copyrighted.” As an initial matter, which the appeals court makes clear, “all contemporary photographs are presumptively under copyright,” so the assertion that one could use a photo they found online and assume that it wasn’t protected by copyright is rather weak. And further, the notion of “good faith” is presumed in a finding of fair use, and so, while courts do sometimes weigh “bad faith” against a finding of fair use, they do not use “good faith” to excuse otherwise infringing behavior.
Taking all of this into account, the appeals court found that this factor weighed against a finding of fair use.
Factor 2: The Nature of the Copyrighted Work
This factor looks at whether the work is more creative in nature or factual. In describing the purpose of this factor, the appeals court, quoting the Supreme Court decision in Campbell v. Acuff-Rose, said, “some works are closer to the core of intended copyright protections than others”—i.e., works that are more creative in nature—“and so have thicker rights.” As such, “‘fair use is more difficult to establish’ when such works are copied.” In its analysis, the district court concluded that Violent Hues used the photo “for its factual content” rather than its creative elements. Not only does this finding disregard the creative nature of photography, the court incorrectly placed the focus on the nature of the secondary use rather than the nature of the copyrighted work. The appeals court, instead, discussed how photographs are “‘generally viewed as creative, aesthetic expressions of a scene or image” and have long received thick copyright protection.” (citing to Monge v. Maya Magazines, Inc.).
“In taking the photograph at issue here, Brammer made many creative choices. He alleges that he set up at a “private, rooftop location” and “experimented with numerous shutter speed and aperture combinations.” The resulting Photo is a stylized image, with vivid colors and a bird’s-eye view. Notably, the vehicle traffic appears as streaks of light. The Photo’s subject may be a real-world location, but that location does not, in reality, appear as shown.”
The district court, in determining that this factor also weighed in favor of fair use, used the fact that Brammer’s photograph was previously published against him, ruling (incorrectly) that “the scope of fair use is broadened when a copyrighted work has been previously published.”
Citing to another Supreme Court opinion in Harper v. Row, the Fourth Circuit explained the proper formulation of this rule: “when a work is unpublished, the ‘scope of fair use is narrower’ because the author has the ‘right to control the first public appearance of his expression.’” Contrary to the district court’s conclusion, the inverse—that a published work warrants a broader scope of fair use—does not follow. (Don’t quote me, but I think the district court applied one of those fallacies I learned about it my logic class in undergrad). The appeals court, therefore, determined that the publication status was irrelevant in this context.
Finding that the photograph is creative and merits thick copyright protection, the Fourth Circuit determined that the second factor weighed against fair use.
Factor 3: Amount and Substantiality of the Portion Used
The district court ruled, in a rather conclusory way, that since Violent Hues cropped “approximately half of the original photo,” it used “no more of the photo than was necessary” to effectuate its purpose. Although the district doesn’t say it, it seems that part of the reason they reached such a conclusion was in reliance of its earlier (incorrect) conclusion that the use was transformative.
Luckily, the Fourth Circuit, in reaching the opposite conclusion, provided a more thorough and accurate analysis. The appeals court stated that even though Violent Hues cropped half of the photo, it “merely removed the negative space and kept the most expressive features, which constituted the ‘heart of the work.’” The secondary use cannot employ more than is justifiable, and as the appeals court points out, where a use is not transformative, such as in this case, taking “the heart of the work” weighs against a finding of fair use.
Factor 4: The Effect of the Use Upon the Potential Market for or Value of the Copyrighted Work
I go back and forth, between the district court’s analysis in the first and fourth factors, about which bothers me more. It really just depends on the day.
Here, the district court held that Violent Hues’ unauthorized use of Brammer’s photo—a photo which is available for license—had no effect on the market because 1) the unauthorized use did not completely obliterate Brammer’s ability to license the photo going forward (as evidenced by the fact that Brammer licensed it at least two times after Violent Hues’ unauthorized use) and 2) Violent Hues did not sell copies of the photograph or otherwise generate revenue from it. Setting aside what an impossible and dangerous standard the district court’s reading would create, the court entirely missed the most important inquiry of this factor: “whether unrestricted and widespread conduct of the sort engaged in by the defendant would result in a substantially adverse impact on the potential market for the original.” The appeals court found that “if Violent Hues’ behavior became common and acceptable, the licensing market for Brammer’s work specifically, and professional photography more broadly, might well be dampened,” and added that “If the mere fact of subsequent sales served to defeat a claim of market harm, then commercially successful works could hardly ever satisfy this factor.”
In a decision that should be celebrated not only by the photography community, but by creators across the board, the Fourth Circuit completely reversed the district court’s findings as to each of the four factors, holding that “Violent Hues’ affirmative defense  fails as a matter of law.”