Well, this one has some potentially scary consequences for photographers rights, as well as other copyright holders. The case involves an image created by photographer Russell Brammer in 2011, stolen in 2016, and then taken, cropped and used by Violent Hues Productions, LLC on their website to promote a film festival.
The logic of this is so complexly stupid that it’s going to take a minute to try and explain.
- 2011 – Photographer Russell Brammer shoots a timelapse photograph in Washington, D. C.
- 2016 – Brammer applies for copyright registration on the image
- 2016 – The image is discovered on the web by VHP, taken, cropped, and posted on their website to help promote a film festival
- 2017 – Brammer sends a cease & desist letter to VHP
- 2017 – VHP remove the image from their website
- 2017 – Brammer pursues VHP in court for copyright infringement
- 2017 – Defendant claims “fair use”
- 2018 – Judge agrees with defendant that the work is “transformative” and “fair use”
Brammer pursued VHP on two counts. The first being the infringement itself, the second beg for alteration of the image and removal of copyright information. Now a judge in the Eastern District of Virginia has ruled that photographs are “factual depictions”, not creative, and that copying them, apparently even for commercial use, falls under “fair use”.
The problem though, according to Nova Southeastern University, that the court completely ignored key components of the Copyright Act. They also seem to have completely misunderstood the meaning of “transformative use”. According to the court opinion document…
The Fourth Circuit has held that “[t]he use of a copyrighted work need not alter or augment the work to be transformative. Rather, it can be transformative in function or purpose without altering or actually adding to the original work.”
Essentially they’re saying that simply using an image in a different context, even if you don’t change a thing in the image itself, makes it transformative, thus “fair use”. Well, doesn’t that pretty much make all stock photography a free-for-all? I mean, there the same images are used in all kinds of different contexts.
Violent Hues’ use of the photograph was transformative in function and purpose. 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 non-commercial, because the photo was not used to advertise a product or generate revenue.
Yes, that’s right, this image used on a commercial website to promote a commercial film festival is non-commercial use, according to the judge.
Oh yeah, and it seems “I found it on the web” is a valid legal excuse for stealing images now. Interns and “the web guy” the world over can now breathe a collective sigh of relief.
In addition to being transformative and non-commercial, Violent Hues’ use of the photo was also in good faith. The record indicates that Mr. Mico, Violent Hues’ owner, found the photo online and saw no indication that it was copyrighted. Mr. Mico attests that he thus believed the photo was publically available. 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.
Law Fuel reports that even though “good faith” and “innocent intent” may actually determine how much a party is liable for, they are not admissible as evidence of non-infringement or fair use. So, legally, ignorance is no excuse – although this judge seems to think otherwise.
It’s a crazy one to try and wrap your head around just what this judge might have been thinking. But if you want to read more about the case…
- Case Docket
- Court Opinion
- Opinion Summary
- Nova Southeastern University’s take
- Law Fuel’s response to the ruling
There’s no word yet on whether or not Brammer will appeal this ruling, although I highly suspect that he will, as it may have dire consequences for copyright everywhere if left unchallenged.