Russell Brammer v. Violent Hues Productions, LLC
922 F.3d 255 (2019)
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Rule of Law:
The unlicensed use of a copyrighted photograph on a commercial website for a purely illustrative purpose is not a fair use under the Copyright Act when the use is non-transformative and supplants a traditional licensing market for the work.
Facts:
- In 2011, Russell Brammer, a commercial photographer, shot a stylized photograph titled 'Adams Morgan at Night'.
- Brammer published the photograph on his personal website and on the image-sharing site Flickr, accompanied by the notice '© All rights reserved'.
- Brammer has a history of licensing the photograph for online use and selling physical prints.
- In 2016, Fernando Mico, the owner of Violent Hues Productions, LLC, found the photograph through a Google Images search.
- Mico cropped the photograph and posted it on novafilmfest.com, a commercial website promoting a for-profit film festival.
- The photograph was used on a 'Plan Your Visit' webpage to illustrate the Adams Morgan neighborhood without attribution or commentary.
- After being contacted by Brammer's counsel, Violent Hues removed the photograph from its website but refused to provide compensation.
Procedural Posture:
- Russell Brammer initiated a copyright infringement action against Violent Hues Productions, LLC in the U.S. District Court.
- Violent Hues asserted an affirmative defense of 'fair use' and moved for summary judgment.
- The district court granted Violent Hues' motion for summary judgment, ruling that the use was fair.
- Brammer, as the appellant, appealed the district court's judgment to the U.S. Court of Appeals for the Fourth Circuit.
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Issue:
Does the unlicensed use of a copyrighted photograph on a commercial website to illustrate a geographic location constitute fair use under the Copyright Act?
Opinions:
Majority - Judge Diana Gribbon Motz
No, the unlicensed use of a copyrighted photograph on a commercial website to illustrate a geographic location does not constitute fair use. An analysis of the four statutory factors shows that none weigh in favor of fair use. First, the use was not transformative; Violent Hues merely repackaged the photo for an illustrative purpose identical to its original aesthetic function, and its commercial nature was exploitative as it sought to avoid paying a customary licensing fee. Second, the nature of the work was highly creative and artistic, affording it thick copyright protection. Third, Violent Hues took the 'heart of the work' by using its most expressive features, a substantial taking that was unjustified given the non-transformative use. Finally, the use directly harmed the potential market for the photograph, as evidenced by Brammer's history of licensing the photo for similar online uses and the fact that widespread, similar conduct would destroy the market for stock photography.
Analysis:
This decision reinforces a narrow interpretation of the fair use doctrine in the context of online commercial use of photography. It clarifies that a merely 'informational' or illustrative purpose for using an image does not render the use transformative, especially when it directly competes with the copyright holder's primary licensing market. The ruling serves as a significant precedent against businesses that appropriate images from the internet for commercial websites without licensing them, underscoring that such conduct is unlikely to be shielded by fair use. The court's analysis signals that the ease of online copying does not diminish the strength of copyright protection for creative works like professional photography.
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