Appeals court reverses "idiotic" anti-photographer lower court ruling
Sep 10, 2019 13:35:30 #
Los-Angeles-Shooter
Loc: Los Angeles
"Adams Morgan at Night" by Russell Brammer. Violent Hues Productions cropped this image and used it without permission to promote a film festival. ©Russell Brammer
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A U.S. Court of Appeals has reversed a lower court’s finding of fair use in the case of Brammer v. Violent Hues. The lower court had rejected photographer Russel Brammer’s claim of infringement after his photo was used without permission to promote a film festival.
“What [the defendant] 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,” the U.S. Court of Appeals for the Fourth Circuit said in it ruling.
The appeals court also said: “If the ordinary commercial use of stock photography constituted fair use, professional photographers would have little financial incentive to produce their work.”
Brammer sued Violent Hues Productions in 2017 for unauthorized use of a time-lapse photograph of the Adams Morgan neighborhood of Washington, DC. Violent Hues, which organizes the annual Northern Virginia Film Festival, used Brammer’s photo on a website intended to provide festival attendees with information about lodging, transportation, and things to do in the northern Virginia/Washington D.C. area.
Violent Hues owner Fernando Mico used a cropped version of Brammer’s photo after finding it online.
The lower court dismissed Brammer’s infringement claim on the grounds that “Violent Hues’ use of the photo was a fair use, and therefore did not constitute infringement,” according to court papers.
Legal observers and photographers’ trade groups blasted the decision. Most controversial was the lower court’s finding that Violent Hues’s use of Brammer’s photo was “transformative” because Brammer had created the image for “promotional” purposes, while Violent Hues used it for “informational” purposes.
Attorney David Deal, a former photographer who represented Brammer in the appeal, said at the time that the lower court decision “is opening the door that any use, other than my client’s use, is a fair use…that’s not close to the scope of fair use.”
In its decision, the appeals court agreed. It applied the four-pronged test for fair use, and concluded that the use of Brammer’s image by Violent Hues failed all four tests.
Considering the “purpose and character” of the secondary use, which is the first of the four fair use factors, the appeals court found that the use of Brammer’s image by Violent Hues “shows no apparent transformation.” The slight change that Violent Hues made by cropping the image “does not alter the original with ‘new expression, meaning or message.’” the court explained.
The court went on to say: “Violent Hues’ sole claim to transformation is that its secondary use of the Photo provided film festival attendees with ‘information’… 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.”
On the second fair use factor, “the nature of the copyrighted work,” the appeals court determined that Brammer’s artistic creativity in making the photo entitled it “to thick copyright protection.” So the court concluded “the second factor also weighs against fair use.”
The third factor, the “amount and substantiality of the portion used,” also weighed against fair use, the court said. That was because Violent Hues used roughly half the photo—the half that was “the heart of the work,” the court said.
The fourth factor, “the effect of the use upon the potential market for or value of the copyrighted work,” also weighted against fair use. “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,” the appeals court said.
“Considering these factors together, it is clear that the copying here fails the ‘ultimate test’ of fair use: Violent Hues’ online display of Brammer’s Photo does not serve the interest of copyright law,” the court concluded.
After delivering Brammer a victory on the fair use question, the appeals court sent the case back to the lower court for further proceedings.
Comments
A U.S. Court of Appeals has reversed a lower court’s finding of fair use in the case of Brammer v. Violent Hues. The lower court had rejected photographer Russel Brammer’s claim of infringement after his photo was used without permission to promote a film festival.
“What [the defendant] 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,” the U.S. Court of Appeals for the Fourth Circuit said in it ruling.
The appeals court also said: “If the ordinary commercial use of stock photography constituted fair use, professional photographers would have little financial incentive to produce their work.”
Brammer sued Violent Hues Productions in 2017 for unauthorized use of a time-lapse photograph of the Adams Morgan neighborhood of Washington, DC. Violent Hues, which organizes the annual Northern Virginia Film Festival, used Brammer’s photo on a website intended to provide festival attendees with information about lodging, transportation, and things to do in the northern Virginia/Washington D.C. area.
Violent Hues owner Fernando Mico used a cropped version of Brammer’s photo after finding it online.
The lower court dismissed Brammer’s infringement claim on the grounds that “Violent Hues’ use of the photo was a fair use, and therefore did not constitute infringement,” according to court papers.
Legal observers and photographers’ trade groups blasted the decision. Most controversial was the lower court’s finding that Violent Hues’s use of Brammer’s photo was “transformative” because Brammer had created the image for “promotional” purposes, while Violent Hues used it for “informational” purposes.
Attorney David Deal, a former photographer who represented Brammer in the appeal, said at the time that the lower court decision “is opening the door that any use, other than my client’s use, is a fair use…that’s not close to the scope of fair use.”
In its decision, the appeals court agreed. It applied the four-pronged test for fair use, and concluded that the use of Brammer’s image by Violent Hues failed all four tests.
Considering the “purpose and character” of the secondary use, which is the first of the four fair use factors, the appeals court found that the use of Brammer’s image by Violent Hues “shows no apparent transformation.” The slight change that Violent Hues made by cropping the image “does not alter the original with ‘new expression, meaning or message.’” the court explained.
The court went on to say: “Violent Hues’ sole claim to transformation is that its secondary use of the Photo provided film festival attendees with ‘information’… 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.”
On the second fair use factor, “the nature of the copyrighted work,” the appeals court determined that Brammer’s artistic creativity in making the photo entitled it “to thick copyright protection.” So the court concluded “the second factor also weighs against fair use.”
The third factor, the “amount and substantiality of the portion used,” also weighed against fair use, the court said. That was because Violent Hues used roughly half the photo—the half that was “the heart of the work,” the court said.
The fourth factor, “the effect of the use upon the potential market for or value of the copyrighted work,” also weighted against fair use. “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,” the appeals court said.
“Considering these factors together, it is clear that the copying here fails the ‘ultimate test’ of fair use: Violent Hues’ online display of Brammer’s Photo does not serve the interest of copyright law,” the court concluded.
After delivering Brammer a victory on the fair use question, the appeals court sent the case back to the lower court for further proceedings.
Sep 10, 2019 13:41:44 #
Los-Angeles-Shooter wrote:
"Adams Morgan at Night" by Russell Bramm... (show quote)
Thx for the information.
Sep 10, 2019 14:02:14 #
Sep 10, 2019 21:36:05 #
Sep 10, 2019 23:21:25 #
The district court judge (whose decision was reversed on appeal) is far from the brightest star in the legal firmament in Virginia.
Sep 10, 2019 23:52:57 #
Los-Angeles-Shooter wrote:
Thanks for posting."Adams Morgan at Night" by Russell Bramm... (show quote)
Sep 11, 2019 00:30:00 #
bellgamin
Loc: Ewa Beach, Hawaii
rgrenaderphoto wrote:
I wonder if it has "worked" yet. It got sent back to the lower court so... what next?Nice when the legal system works for a change.
Sep 11, 2019 13:16:15 #
Los-Angeles-Shooter
Loc: Los Angeles
bellgamin wrote:
I wonder if it has "worked" yet. It got sent back to the lower court so... what next?
"next" is that the lower court decides properly, following the finding of the appeals court.
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