By Sara Gates and Nancy Wolff CDAS
The rights of a stock photographer were recently vindicated when the U.S. Court of Appeals for the Fourth Circuit overturned a questionable Virginia district court decision, which held that a production company’s use of a stock photo of a Washington, D.C. neighborhood on a website promoting a film festival was fair use. In the decision released on April 26, 2019, the Fourth Circuit determined that Violent Hues Productions, LLC’s use of a cropped version of photographer Russell Brammer’s photo of Adams Morgan in a list of tourist attractions on a website promoting the Northern Virginia International Film and Music Festival did not qualify as a fair use.
The case focuses on the photograph “Adams Morgan at Night,” which Brammer shot from the rooftop of a building in the Washington D.C. neighborhood in 2011. Experimenting with various shutter speeds and aperture combinations, Brammer photographed a busy street full of passing cars that appear as trails of red and white lights. He published a digital copy of the photo on his website and on Flickr with a “© All rights reserved” notice, and later licensed the photo for online use.
Years later, in 2016, Violent Hues downloaded the photo—presumably from Flickr, while overlooking the rights notice—and proceeded to crop out the negative space before posting it on http://novafilmfest.com, necessitating the litigation. After the district court absolved Violent Hues of liability under the fair use doctrine, Brammer appealed the decision, asking the Fourth Circuit to set the record straight.
The Fourth Circuit did just that when it engaged in a thoughtful analysis of the fair use factors and considered the arguments raised by each side. Its decision is instructive as it adds to the wealth of case law on how to interpret the complex and nuanced doctrine of fair use.
Purpose and Character of the Use
For the first factor, the Court considered whether Violent Hues did anything to transform the work. The Court rejected Violent Hues’ suggestion that the analysis should focus on the subjective intent of the parties and instead compared Brammer’s photo and Violent Hues’ use, as it appeared on the website, side-by-side. The only obvious change, the Court noted, was the cropping, which generally is non-transformative.
The Court also rejected Violent Hues’ contextual argument, in which they claimed that they transformed the photo by putting it on a list of tourist attractions. While courts have found minor contextual changes to be sufficient in two specific instances—raw material for technological functions and documentary uses—the Court found that Violent Hues’ copying did not fall within either category.
As Violent Hues’ use of the photo was also for a for-profit film festival, and Violent Hues’ did not have to pay the customary fee for its use of stock image, the Court found this factor ultimately weighed against fair use.
Nature of the Copyrighted Work
The Court’s consideration of the second factor focused on the thickness versus the thinness of the author’s rights, noting that some works are closer to the core of intended copyright protection that others, which should be entitled to only thin copyright protection. Here, the Court found the photo was entitled to “thick” protection, considering Brammer’s many creative choices, such as the location, shutter speed and aperture combinations, uses of vivid colors, and birds-eye-view angle. The Court noted that photos are generally viewed as creative, even if they capture images of reality, and have long received thick protection.
Additionally, the Court noted that publication status of the photo was not relevant fair use analysis. Unlike in the case of literary works, where the right of first publication is paramount, photos are often intended for repetitive viewing, so the publication consideration is different in the area of photography. The Court summed it its point as follows: context matters. Accordingly, the Court found that this factor also weighed against fair use.
Amount and Substantiality of the Portion Used
The Court’s analysis of this factor was straightforward, as it was clear that Violent Hues used roughly half the photo by cropping out the negative space, but kept the most expressive features, i.e., the heart of the work. While a substantial taking can still constitute fair use, if it is justified (requiring the Court to look back to the first factor), here, the taking was not justified. This factor also weighed against fair use.
Effect on the Market
For the fourth factor, the Court consider both the extent of the market harm and whether Violent Hues’ conduct, if widespread, would result in a substantially adverse impact to the photos’ potential market. Here, the Court found a presumption of market harm, which exists when commercial use is not transformative, but amounts to a mere duplication. Though Brammer was not required to present any evidence to show the negative effect on the licensing market for the photo, given that the Court found the presumption applies, he did so, showing that he received a $1,250 fee in one instance. The Court noted that Brammer would have missed out on this fee if the company that decided to license his photo had instead opted to act like Violent Hues. Thus, this factor weighed against fair use as well.
As all four factors weighed against fair use, the Court’s balancing test was fairly easy: no fair use. The Court signed off with this reminder the there is no difference between copying photos for print use versus online use: “What 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.”
DMLA filed an amicus brief in favor of the photographer, specifically addressing the fourth factor – extent of the market harm -and the impact the lower court’s decision would have on the licensing industry if this type of fair use of an image became widespread. Other visual artists associations as well as the Copyright Alliance, submitted amicus briefs on behalf of the photographer addressing other factors. This is great example of the industry coming together to correct a decision that if left to stand, could adversely affect the rights of content owners and members of DMLA if other courts followed the lower courts fair use analysis.