The Fair Use Doctrine is firmly rooted in copyright jurisprudence, codified at 17 U.S.C. § 107. It provides that the "the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." Id. But just taking an image from the Internet and using it in an online publication has been widely understood as, well, unfair use. The issue most often arises for celebrity photographers who find multiple online publications incorporating photographs they have taken of celebrities into articles, blogs and other commentary about the celebrity, some related to the photograph, most not. It was a practice uniformly regarded as a "no, no."
Enter Brammer v. Violent Hues Prods., LLC, 2018 U.S. Dist. LEXIS 98003, 2018 WL 2921089 (E.D. Va. 2018). That decision has been uniformly reviled within the copyright community, as a "no, no." The decision, however, injects much needed life into the Fair Use Doctrine discussion, as online publications and blogs are increasingly become the leading source of news and entertainment for most readers (regardless whether you may view that as a positive or negative).
On June 11, 2018, the United States District Court for the Eastern District of Virginia In Brammer considered whether "Violent Hues infringed [photographer Russell Brammer's] copyright by using a photograph on Violent Hues' website which Brammer had captured and posted online." 2018 U.S. Dist. LEXIS 98003, at *1. The court, after considering of the Fair Use factors, found "Violent Hues' use was a fair use, and that there was no copyright infringement." Id. at *7.
Russell Brammer's Photograph
Brammer "took the photograph at issue in this case in November 2011. The photo is a time-lapse depiction of the Adams Morgan neighborhood of Washington, D.C., at night. Brammer posted this photo on several online image-sharing websites as well as his personal website." Id. at *1. He "applied for a copyright registration in September 2016, which was granted in July 2017." Id.
Violent Hues' Use
Violent Hues "organizes an annual film festival, the 'Northern Virginia Film Festival.' In 2014, Violent Hues created a website intended to be used as a reference guide providing information about the local area for filmmakers and other attendees of the festival. The website provides information about lodging, transportation, and things to do in the Northern Virginia/Washington D.C. area. In 2016, Violent Hues posted a cropped version of Brammer's photo on its website." Id. at *1-*2.
Fair Use Analysis in Brammer v. Violent Hues
Judge Hilton in Brammer recited the familiar Fair Use factors listed in Section 107: "(1) the purpose and character of the use, including whether such use is of a commercial nature . . . ; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work." Id. at *3.
As to the factors, the Brammer court then found:
"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 noncommercial, because the photo was not used to advertise a product or generate revenue."
“Violent Hues' use of the photo was also in good faith. … Violent Hues' owner, found the photo online and saw no indication that it was copyrighted. … 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.”
“The photograph in question … was also a factual depiction of a real-world location …. Violent Hues' used the photo purely for its factual content, to provide festival attendees a depiction of the Adams Morgan neighborhood.”
“[T]he scope of fair use is broadened when a copyrighted work has been previously published. … 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.”
“Violent Hues edited the photograph by cropping approximately half of the original photo from the version it used on its website. Violent Hues used no more of the photo than was necessary to convey the photo's factual content and effectuate Violent Hues' informational purpose.”
“[T]here is no evidence that Violent Hues' use of the photo had any effect on the potential market for the photo.”
Id. at *4-*6. Apart from two seemingly pivotal facts, Brammer reflects rather run-of-the-mill use, which potentially makes the decision a substantial expansion of Fair Use doctrine (at least, it has been perceived as such). But it may not work as tremendous an upheaval in the law as some commentators have suggested. Brammer appears to have turned on the fact that (1) Brammer was able to continue to sell his image, unaffected by any use by Violent Hues, as "[a]t least two of [his] sales occurred after Violent Hues' alleged infringement began," and (2) Violent Hues did not profit from its use, at least in the traditional sense, as it "did not sell copies of the photo or generate any revenue from it." Id. at *7. The second fact, that Violent Hues' website was informational, rather than commercial -- though tied to a commercial enterprise that more likely than not benefitted from the promotion generated from the webpage -- seems to have tipped the Fair Use scales, at least for Judge Hilton.
Brammer is not the first court to have placed a seemingly decisive emphasis on whether the use can be tied directly to financial profit, even in obviously commercial uses. See, e.g., Artists Music, Inc. v. Reed Publishing (USA), Inc., 1994 U.S. Dist. LEXIS 6395, at *17 (S.D.N.Y. May 17, 1994) (“This Court does not believe that alleged infringements by four of 134 exhibitors in any way affected gate receipts at the Show. Plaintiffs offer no evidence that so much as a single attendee came to the Show for sake of the music played by four out of 134 exhibitors.”). In that regard, Brammer is not novel.
Brammer, however, is a substantial victory for online publications, at least where the use is only tenuously connected to commercial revenues of the alleged infringer.
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