IP Alert: Copyright Course Correction of the Year

Somewhere in your organization, this very scenario may be playing out right now:

The assignment is to update the website to add an event that your company or client is hosting. Some quick and clever digital whiz on your team finds a perfect image on the internet to capture the feel of the event. The employee copies the photo from the internet and incorporates it into your website update. The employee didn’t realize that you can’t just crop and copy someone else’s work without permission, and so didn’t seek the image owner’s consent or license to use the image.  

This set of facts generally would be understood to be copyright infringement, regardless of the absence of knowing or ill intent. The law is well-settled that ignorance is no defense to a copyright infringement claim. Scholars and lawmakers refer to copyright as a strict liability tort. 

That is why a decision out of the United States District Court for the Eastern District of Virginia in 2018 raised serious concerns, particularly among photographers and their professional associations. The photo at issue in that case depicted a night scene in Washington D.C.’s Adams Morgan neighborhood, taken by commercial photographer Russell Brammer. The owner of the film production company Violent Hues Productions posted the photo to promote an upcoming music festival. The photographer’s counsel sent a letter asking Violent Hues to pay for its use of Brammer’s photo. Violent Hues removed the photo, but did not pay Brammer. Brammer then sued for copyright infringement. In Brammer v. Violent Hues Productions, LLC, 2018 WL 2921089, the District Court found that the unlicensed use of a photo found on the internet was not copyright infringement, in part because the person using the photo claimed he didn’t realize he was infringing copyright. The District Court granted summary judgment on Violent Hues’ fair use affirmative defense.

This year, the Fourth Circuit reversed that misguided finding. Fair use is a significant defense to copyright infringement claims, but it doesn’t mean that absence of ill intent makes copying fair. In Brammer v. Violent Hues Productions, LLC, 922 F.3d 255 (4th Cir. 2019), the Fourth Circuit reviewed four factors to evaluate Violent Hues’ asserted fair use defense and disagreed with almost every conclusion reached by the lower court. Highlights and quotes from the Fourth Circuit’s analysis of each factor will give you a quick understanding of the law generally on this common fact pattern:

1. Purpose and character of the use
   • Cropping a copied photo does not transform it into a new work.
   • “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.” 922 F.3d at 265.
   • Evidence of bad faith copying may make your case worse, but good faith does not improve your case. Good faith is the expectation in fair use analysis. Copyright infringement is, essentially, a strict liability offense.
   • It was negligence, at best, for the Violent Hues’ employee to think he could use another’s photo without permission when “all contemporary photographs are presumptively under copyright, 17 U.S.C. § 302(a), and given his own acknowledgment that he downloaded the Photo from Flickr, which stated ‘© All rights reserved’ in the Photo caption.” 922 F.3d at 266.
2. Nature of the copyrighted work
   • Photos are generally considered creative work deserving strong copyright protection.
   • “Although [the photo owner] 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.” 922 F.3d at 267.
3. Amount and substantiality of the portion used
   • Non-transformative use of half of the photo, including the heart or core of the photo, was not justified.
   • “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.” 922 F.3d at 268.
4. Effect on the potential market
   • Copyright owners are entitled to a presumption of market harm when someone makes non-transformative commercial use of the image.
   • “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.” 922 F.3d at 268.

The Fourth Circuit ended its opinion by saying that it was limited to situations like this one, concerning commercial non-transformative unauthorized use of another’s photo. It would not promote the purposes of copyright to find Violent Hues’ conduct to be “fair use.” The court recognized that “the Internet has made copying as easy as a few clicks of a button and that much of this copying serves copyright’s objectives.” 922 F.3d at 269. The decision expressed no opinion on whether the “sharing” or copying content that happens daily on social media platforms like Twitter, Facebook and Instagram amount to fair use.