Court Rules Photographs are “Factual Depictions;” Copying Them Is Fair Use

Stephen Carlisle June 21, 2018

On June 11, 2018, another head scratching decision came out of the Eastern District of Virginia, one that has the potential to seriously erode the copyright protections afforded photographers.

The case, Brammer v.Violent Hues Productions LLC, ¹ has a very simple set of facts:

• 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”

The Court proceeds to ignore key components of the Copyright Act, disregards readily apparent facts, and once again totally botches the “transformative use” test. In reading the opinion, I wondered if this was the same Eastern District of Virginia judge that botched the fair use test in Philpot v. Media Research Center. ² Nope, but clearly something is wrong in that division of the Federal Judiciary. Because, just like the Court in Philpot, it holds that taking an artistic photograph and placing it in an (allegedly) informational context, is a transformative use.

Says the Court:

“Violent Hues’ use of the photograph was transformative in function and purpose. 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. Furthermore, this use was non-commercial, because the photo was not used to advertise a product or generate revenue.” ³

C’mon, Judge. The Defendants used the photograph because it was artistic and cool. Remember, this is a “time lapse” photograph, which results in moving objects being blurred. The Defendants use was not informational. They used the “cool photograph” to entice people to come to their film festival, e.g. “look at all the cool stuff to do nearby.” Presumably, they charge an admission fee to attend their film festival. This admission fee, again “presumably” generates revenue.

It gets worse.

“In addition to being transformative and non-commercial, Violent Hues’ use of the photo was also in good faith. The record indicates that Mr. Mico, Violent Hues’ owner, found the photo online and saw no indication that it was copyrighted. Mr. Mico attests that he thus believed the photo was publically available. This good faith is further confirmed by the fact that as soon as Violent Hues learned that the photo may potentially be copyrighted, it removed the photo from its website.” ⁴

Wow. In actuality:

• 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.

Shouldn’t someone who organizes a film festival (of all things) know this? This is basic copyright 101 type stuff. What’s even worse is that, shouldn’t we have the right to expect that a Federal Judge would know what the law is on a subject that he is issuing a written opinion?

Further down, the Judge repeats his erroneous conclusion that failure to provide copyright notice somehow should weigh against the Plaintiff.

“It is undisputed in the record that Brammer previously published the photograph on several websites as early as 2012, and at least one of these publications did not include any indication that it was copyrighted.” ⁵

Wrong, wrong, wrong. Once again, there is no legal requirement that the copyright owner place copyright notice on their work. The lack of copyright notice may have weight as to a claim of innocent infringement, but cannot support a finding of good faith, as the Court does here. As the Second Circuit Court of Appeals has noted, “[c]opyright infringement is a strict liability offense in the sense that a plaintiff is not required to prove unlawful intent or culpability.” ⁶ Good faith may come into play when determining the amount of damages, but has no place in a discussion of liability.

Then there’s this whopper:

“‘However, if the disputed use of the copyrighted work ‘is not related to its mode of expression but rather to its historical facts,’ then the creative nature of the work is mitigated.’ (citation omitted)

The photograph in question contained creative elements (such as lighting and shutter speed choices) but was also a factual depiction of a real-world location: the Adams Morgan neighborhood in Washington, D.C. Violent Hues’ used the photo purely for its factual content, to provide festival attendees a depiction of the Adams Morgan neighborhood.” ⁷

Unbelievable. Every photograph is a factual depiction of what was placed in the line of sight of the camera lens, e.g. “this is precisely what the model in this dress, using this pose, with this lighting, with this background, looked like on the moment I pressed the shutter.” Therefore, under 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.”

Consider the iconic photographs taken by renowned photographer Ansel Adams of Yosemite National Park. ⁸ Since they merely depict a natural landscape, which the photographer did not create, all of them now, in the eyes of this Judge become “factual depictions,” and less deserving of protection. This totally disregards the artistry performed in setting up the photograph.

The Court also ignores that every photograph is a factual depiction, except for where the image being captured is manipulated. Which is precisely the case here: this was a time lapse photograph. If the Defendants wanted a “factual depiction” of Adams-Morgan, they could have chosen any photograph. Instead, they chose the one that was eye-grabbing and looked cool.

Finally, the Court misapplies the market effect portion of section 107:

“There is no evidence that Violent Hues’ use has had an adverse effect on the market for the photograph. Brammer attests that he has been compensated for the photo six times, including three physical print sales and three usage licenses. At least two of these sales occurred after Violent Hues’ alleged infringement began, demonstrating that Violent Hues’ use did not affect the market for the photo.”

This misses the point. The point as expressed by numerous other courts is: if everyone were able to do what the defendants did, would this adversely affect the market? In the case of BWP Media USA, Inc v. Gossip Cop Media Inc., also involving the unlicensed copying of photographs, the District Court for the Southern District of New York held:

“[A]llowing Defendant to copy Plaintiff’s images directly from third-party licensees and to frame that copying as ‘news reporting,’ when Defendant’s articles provide no comment on the licensees’ use of the respective photographs — and thus, on the facts of this case, add no additional meaning or expression to those photographs — would effectively allow Plaintiff to license its images only once; after an initial licensee published the photo, third parties could then copy it with impunity.”  ⁹

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.

So the result of the Court’s ruling is that any website which provides tourist information about Washington D.C. is free to use the photo without license or payment. Any website which purports to provide general information about Washington D.C. is free to use the photo without license or payment. Any business located in the Adams-Morgan neighborhood is free to place the photo on their website without license or payment.

This is the negative market effect the Court has apparently not considered.

And though not binding on this Court, this passage from the Second Circuit is instructive:

“[T]he would-be fair user of another’s work must have justification for the taking. 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. Among the best recognized justifications for copying from another’s work is to provide comment on it or criticism of it. A taking from another author’s work for the purpose of making points that have no bearing on the original may well be fair use, but the taker would need to show a justification.” ¹⁰

What’s the justification for the copying here?

I see none.

Addendum: Plaintiff Russell Brammer filed an appeal of the Judge’s decision on July 3, 2018. The Fourth District Court of Appeals will now review the ruling.