“Fair Use is Not Designed to Protect Lazy Appropriators” Rules Court of Appeals

Stephen Carlisle May 1, 2019

On April 26, 2019, the Fourth Circuit Court of Appeals handed down a complete reversal of one of the most egregiously wrong copyright decisions in recent memory. ¹ The case, Brammer v. Violent Hues, was met with howls of outrage from the photographic community when the opinion of the District Court was handed down, and rightly so.

At the time, I wrote: “[U]nder the Judge’s reasoning, all photographs are fair game for re-use, and have less protection than other copyrighted works because they are ‘fact based.’” ² and that the ruling had “the potential to seriously erode the copyright protections afforded photographers…” ³

But friends, this is why we have Courts of Appeals (and the Supreme Court). These Courts exist to correct wrong decisions handed down by trial courts. It is worth noting at the outset, that the Court of Appeals took a little more than 5 weeks from the time of hearing oral argument to issuing a written opinion, and a unanimous decision at that. That is very fast for a Court of Appeals. It is also worth noting that while the Plaintiff photographer attracted numerous “friend of the court” briefs in support of his case, it appears that not one organization did so in support of the Defendant. Very telling.

To recap the facts of the case, I will go back to my initial blog post:

• Plaintiff takes a time lapse photograph of the Washington D.C. neighborhood known as “Adams-Morgan”
• Defendant, who operates the “Northern Virginia Film Festival” copies photo off internet, crops it, and places on its website to illustrate things to do in the D.C. area
• Plaintiff sends cease and desist letter
• Defendant removes the photograph from the website
• Plaintiff sues for copyright infringement
• Defendant claims (all together now) “fair use” ⁴

The trial Court found the use was “transformative” and that overall the use by the Defendants was fair use.

To which the Court of Appeals responds:

“Fair use is not designed to protect lazy appropriators.” ⁵

In turn, one might react by saying “it’s about time the courts starting calling a duck a duck, instead of trying to turn it into a swan.”

The Court states:

“We thus examine Brammer’s original Photo and Violent Hues’ secondary use of the Photo side-by-side… This examination shows no apparent transformation. The only obvious change Violent Hues made to the Photo’s content was to crop it so as to remove negative space. This change does not alter the original with ‘new expression, meaning or message.’ (Citation omitted) Rather, the cropping appears to be purely functional, giving the Photo the same dimensions as the other images on Violent Hues’ website. This copying is of a kind with other non-transformative uses.” ⁶

And, further:

“Violent Hues’ sole claim to transformation is that its secondary use of the Photo provided film festival attendees with “information” regarding Adams Morgan. But 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.” ⁷

As I have noted many times in the past, the “transformative” tail tends to wag the “fair use” dog. In other words, once a Court finds a use to be “transformative,” this almost always results in a finding of fair use. So, in reverse, in finding by the Court of Appeals that the use is “not transformative,” the rest of the fair use argument tends to fail as well.

The Court writes:

“When a commercial enterprise seeks to illustrate its website, it is customary to buy licenses for use of appropriate stock imagery. (citation omitted) Brammer sold such licenses for stock use of his photos. Violent Hues never bought one of these licenses, and its stock use of the Photo was not transformative. Given that Violent Hues is a commercial enterprise and a commercial market exists for stock imagery, its failure to pay the customary fee was exploitative and weighs against fair use.” ⁸

One of the worst parts of the initial decision was that the Defendant had acted in “good faith” in copying Plaintiff’s photograph. At the time, I wrote:

• Under 17 USC 102, every work of artistic expression is protected by copyright the moment it is placed in a tangible media. In short, everything is protected by copyright, unless and until the time that the author disclaims it.
• There is no such thing as “potentially be copyrighted.” If it’s in a tangible media, it’s copyrighted.
• Under 17 USC 401, there is no requirement that an author place copyright notice on his work.
• Nowhere in 17 USC 107 do the words “good faith” appear in describing the parameters of fair use. ⁹

It turns out I was correct.

The Court holds:

““[W]hile bad faith may weigh against fair use, a copyist’s good faith cannot weigh in favor of fair use.” ¹⁰

And:

“Whatever relevance good faith has to the fair use inquiry, Violent Hues has not offered any evidence that it acted in good faith. At best, Violent Hues appears to have acted negligently. Violent Hues’ owner, Fernando Mico, stated that he believed the Photo was freely available. But contrary to Violent Hues’ suggestion, this does not end the matter. For Mico did not explain why this belief was reasonable given that all contemporary photographs are presumptively under copyright…” ¹¹

As to the second fair use factor, the Court finds the Plaintiff work to be commercial and highly expressive.

“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. This creativity entitles the Photo to thick copyright protection. Although Brammer could not prevent others from taking night-time photographs of Adams Morgan, he surely can assert his rights in his own expression of that scene.” ¹²

While I can appreciate the Court’s ruling here, I fear that some will take the opposite to be true, namely that capturing a moment, in a split second of time, will somehow merit less protection than a carefully staged scene as is present here.

The Court cautions against this interpretation:

“As a basic matter, photographs are ‘generally viewed as creative, aesthetic expressions of a scene or image’ and have long received thick copyright protection. (citation omitted) This is so even though photographs capture images of reality. (citation omitted) (‘Simply because a photo documents an event does not turn a pictorial representation into a factual recitation …. Photos that we now regard as iconic often document an event — whether the flight of the Wright Brothers’ airplane, the sailor’s kiss in Times Square on V–J Day, the first landing on the moon, or the fall of the Berlin Wall.’)” ¹³ (emphasis added).

In cleaning up, the Court quickly finds that the Defendant took not only a large portion of the work, but took the “heart” of the work as well.

“Here, Violent Hues used roughly half of the Photo. Moreover, Violent Hues merely removed the negative space and kept the most expressive features, which constituted the ‘heart of the work.’(citation omitted) Given that Violent Hues’ use was non-transformative, this considerable taking was not justified.(citation omitted) (‘A secondary author is not necessarily at liberty to make wholesale takings of the original author’s expression merely because of how well the original author’s expression would convey the secondary author’s different message.’). Violent Hues could just as easily have accomplished its goal of depicting Adams Morgan by taking its own photograph or finding an image under free license. The third factor thus weighs against fair use.” ¹⁴ (emphasis added)

As to the fourth and final factor, Defendant advances the incredible proposition that the Plaintiff suffered no market harm because he was able to license the photo after Defendant’s infringing use.

The Court is not buying this argument either:

“Violent Hues made commercial use of the Photo and duplicated the heart of the work by copying the Photo’s most expressive features. Brammer thus need not demonstrate that the licensing market for his Photo would be depressed should Violent Hues’ behavior become widespread… Indeed, 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… 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. Like the others, the fourth factor weighs against fair use.” ¹⁵ (emphasis added)

Back when the initial decision was released, I wrote in my blog post:

“Here, the Defendants copied the photograph off the internet, cropped it and placed it on their website. There is no commentary. There is no criticism. Defendants use adds no additional meaning. It adds no additional expression.” ¹⁶

The Fourth Circuit agrees with this, holding:

“Violent Hues’ ‘informational’ use of the Photo as a stock image does not further this intellectual objective because Violent Hues said nothing new through this use. Instead, allowance of Violent Hues’ defense would frustrate copyright’s central goal. If the ordinary commercial use of stock photography constituted fair use, professional photographers would have little financial incentive to produce their work.” ¹⁷

Nice to know that a Court of Appeals finally got it right in the race to declare everything a “transformative” use.

And thanks to Russell Brammer for taking a stand here. The photographers of the U.S. are much better off with this important decision in hand.

Now, for all you “lazy appropriators” out there, well, you’ve been warned.