Fair Use And Other Foibles

Earlier this year, the court decision in the case of Brammer v. Violent Hues prompted a considerable amount of discussion and concern among photographers. This angst grew out of a lawyer’s article suggesting that the court ruled photographs are “factual depictions,” copying them is fair use, and the decision has the “potential to seriously erode the copyright protections afforded photographers.”

The hype surrounding the court decision brings to mind Mark Twain’s quotation that, “The report of my death was an exaggeration.” That’s not to say that the decision isn’t flawed, but it’s an overreaction to view one trial court’s decision as potentially eviscerating the rights conferred to photographers under the Copyright Act. Still, the case offers lessons for both lawyers and photographers alike, and it serves as a cautionary tale for each.

The Case And Decision

In 2011, Corvallis, Oregon-based photographer Russell Brammer created a night image of the Adams Morgan neighborhood of Washington, D.C. Brammer published the image to his website and to several image-sharing websites, including Flickr. Unfortunately, Brammer didn’t timely register the copyright for the image.

In 2014, Violent Hues, organizer of the annual Northern Virginia Film Festival, created a website intended as a reference guide providing information about the local area to filmmakers and other attendees of the festival. In 2016, Violent Hues posted a cropped version of Brammer’s photograph on its website. Violent Hues’ owner claimed to have found Brammer’s photograph online and said that he saw no indication it was copyrighted. Under current copyright law, the use of the copyright notice is optional for works first published on or after March 1989, which includes Brammer’s photograph.

After receiving a demand letter from Brammer’s lawyer in February 2017, Violent Hues discontinued its use of Brammer’s photograph. However, efforts to negotiate a license fee for Violent Hues’ usage were unsuccessful. Brammer sued Violent Hues in federal court in Virginia, claiming both copyright infringement and removal or alteration of copyright management information from his photograph. In response, Violent Hues defended its use on fair use grounds and denied removing or altering any copyright management information.

When assessing Violent Hues’ claim of fair use, the court considered the fair use factors as set forth in the Copyright Act: “(1) the purpose or character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (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 the value of the copyrighted work.”

What Constitutes “Fair Use?”

Assessing the purpose or character of the use, the court concluded that Violent Hues’ use of the image was transformative in nature. Such a conclusion was hardly surprising in light of major fair use decisions over the last five years. When Richard Prince modified Patrick Cariou’s photographs, the modifications, for most of the images at issue, were deemed sufficiently transformative to support a fair use finding. Likewise, when Dereck Seltzer sued the band Green Day for using a modified version of his “Scream Icon” street art, the band’s modifications were also considered to be sufficiently transformative. However, determining that a use is transformative doesn’t end the fair use analysis.

One of the places where the court’s analysis seems to have taken a wrong turn involves its consideration of good faith. The court noted that Violent Hues acted in good faith because it “found the photo online and saw no indication that it was copyrighted,” and because Violent Hues stopped using the image after receiving a demand letter. Setting aside what happened—merely publishing an image on the web doesn’t negate copyrights (unless the publisher indicates otherwise, such as through a license or public dedication)—the U.S. Supreme Court has made it clear that “[f]air use presupposes ‘good faith’ and ‘fair dealing.’” As such, good faith is a prerequisite to an assertion of fair use and not a basis for satisfying one of the fair use factors. More recently, a federal appeals court explained that although good faith doesn’t help establish fair use, bad faith may negate a fair use defense. Surprisingly, it appears that neither the court nor the briefs filed in Brammer’s case addressed this distinction.

When considering the nature of Brammer’s image, the court indicated that although the “photograph in question contained creative elements (such as lighting and shutter speed choices),” it was also a factual depiction of a real-world location, the Adams Morgan neighborhood. The “factual depiction” language appears to be an inartful attempt to tie the facts of the case to the established concept that fair use is more likely to be found in factual works than in fictional works. However, the court correctly noted that the scope of fair use is broadened when a work has been previously published, as opposed to when the case involves an unpublished work.

Turning to the “amount and substantiality” of the work used, the court noted that Violent Hues cropped the photo and only used roughly half of the image as downloaded from the web.

Finally, the court considered the impact on the market for the image, which is perhaps the most important of the factors. The court noted that there was no evidence Violent Hues’ use had an adverse effect on the market for the image. Brammer had been compensated for the use of the photo six times, with at least two of those licenses/sales occurring after Violent Hues started using the image.

Having found that all of the fair use factors weighed in favor of a finding of fair use, the court ruled that Violent Hues’ use constituted fair use. Since Brammer didn’t attempt to show that Violent Hues removed copyright management information from the image, the court also ruled in favor of Violent Hues on that claim. Brammer appealed the court’s decision.

Reaction To The Decision

Stephen Carlisle, Nova Southeastern University’s copyright officer, wrote a commentary on the court’s decision entitled, “Court Rules Photographs are ‘Factual Depictions’; Copying Them Is Fair Use” and suggested that the decision “has the potential to seriously erode the copyright protection afforded photographers.” While Carlisle’s commentary fairly takes issue with the court’s fair use analysis, it was his statements regarding the potential long-range impact of the decision that drew the attention of photographers and others reporting on the case.

Others analyzing the court’s decision didn’t share Carlisle’s view as to its potential impact. David Kluft, a partner with Foley Hoag in Boston, wrote a blog post entitled “No, Virginia, You Can’t Just Copy Stuff You Find On The Internet, Even If You Don’t Notice The Copyright Notice.” Like Carlisle’s commentary, Kluft points out many problems with the decision, perhaps the most noteworthy of which is that the decision is inconsistent with established precedent. Ultimately, Kluft doesn’t believe that other courts, including courts in Virginia, are likely to follow the decision.

Portland, Oregon, lawyer Bert Krages—more commonly known among photographers as the lawyer who created a document for photographers called “The Photographer’s Right”—also commented that the decision, while flawed, is likely to have little impact on photographers’ rights. “It’s likely that other defendants in copyright cases will cite to the [decision] in the hopes of getting a favorable decision,” says Krages, even though “the decision does not serve as precedent in other cases.”

The court’s approach raises a more fundamental question regarding application of the fair use analysis. Philosophically speaking, there are two ways of thinking about the fair use analysis. One view suggests that courts engage in an analysis of the factors in an effort to reach a conclusion, much the way that one might perform the calculations necessary to compute the answer of a mathematical formula. The contrary and perhaps more cynical view suggests that courts start with a gestalt of the equities and desired outcome, and then use the factors to craft arguments supporting that conclusion. When a court tends to overreach on certain issues or seems to be straining to justify an overall result, the court falls into the gestalt approach.

Since Brammer has appealed the decision, we’ll have to wait to draw any lasting conclusions about the case and its long-term impact.

Lessons To Be Learned

Although the case is now on appeal, it nonetheless provides a number of lessons for photographers.

Before distributing images or posting copies of images to social media or image sharing sites, there are a few steps photographers should take:

1. First and foremost, photographers should register their copyrights. Registration should be part of your typical workflow, and once it’s part of the routine workflow, you’ll likely find that it’s relatively quick, painless and inexpensive to register. The Copyright Office has a system that allows electronic submission of registrations, and you can even save a template to minimize the amount of information you’ll need to fill in with each submission. Depending upon the circumstances, the registration fee is either $35 or $55. That’s a small investment to make, and it pays huge dividends if you find that someone has infringed on your copyrights. Prompt registration ensures that if you need to enforce your rights, you’ll be entitled to recover statutory damages—which can vary from $750 to $30,000 for ordinary infringement—and attorney’s fees.
2. Photographers should ensure that the metadata associated with the images contain their name, some sort of copyright notice and, if possible, terms and conditions for use (or, more precisely, a reservation of rights). Some cameras even provide photographers with the ability to add a comment and/or copyright notice to the EXIF information for each image created. Alternatively, various software tools can be used to automatically apply IPTC caption information to images as they’re ingested into a computer. The particular approach or location for storing the notice isn’t important; what’s important is that the copyright notice is present in the metadata for each image.

While copyright law doesn’t require the use of a copyright notice, proper use of the notice precludes a claim of innocent infringement. Also, the inclusion of copyright information in metadata may help support a claim in the event an infringer removes the copyright information. Since the enactment of the Digital Millennium Copyright Act, copyright owners have been able to sue anyone who intentionally removes or alters copyright management information. Such claims potentially entitle the owner to an award of statutory damages, set by the court, between $2,500 and $25,000 per violation. Thus, a claim based upon the removal of a copyright notice may end up being worth more than the reasonable license fees associated with the infringement itself.

3. When posting copies of images to social media or image sharing sites, photographers should ensure that sites won’t strip out the copyright notice. If the image sharing site doesn’t alter image metadata, and an infringer uses a copy of the image where the copyright notice has been removed, the infringer won’t be able to claim that the image sharing site is responsible for removal of the copyright management information.

Photographers should also be careful to ensure that they’re not dedicating the image to the public domain or subjecting images to a licensing scheme when uploading images. Flickr, for instance, has implemented Creative Commons licensing, and such licenses are irrevocable. In other words, once you make your images available under one of the Creative Commons licensing schemes, you cannot revoke the license; the best you can do is to pull down copies of your images to the extent you still have control over them and stop distributing copies of the images. Selecting the wrong license, or granting rights that allow others to use the images under certain circumstances, may make it difficult or even impossible to recover for a third party’s use of images downloaded from the image sharing site.

Had Brammer taken these steps, his case would have been in a very different position. Although there’s no way to know for certain, it seems reasonable that if faced with the possibility of an award of statutory damages and attorney’s fees, even if only for the copyright management claim, Violent Hues may have settled for at least the reasonable license fee for its use of the image.

Parting Thoughts

As with any prognostication, it’s difficult to state with any authority what will happen to Brammer’s case while on appeal. However, the court’s departure from established precedent suggests that its decision may not survive the appeal.

Regardless of what happens in Brammer’s case, it is a safe bet, as one court noted, that fair use is likely to continue to be “the most troublesome [doctrine] in the whole of copyright law.” For that reason, taking steps to maximize the protections afforded under the Copyright Act is the best way to avoid facing an all-or-nothing result dependent upon the outcome of a fair use challenge.

Samuel Lewis is a Board Certified Intellectual Property Law specialist and shareholder at Cozen O’Connor in Miami, Florida. He is also a professional photographer who has covered sporting events for more than 30 years. He can be reached at [email protected] or [email protected].