The many historic landmarks and neighborhoods in Washington DC are one of the draws for locating events there. In a cautionary tale for event organizers, however, the Court of Appeals of the Fourth District recently ruled that unauthorized use of a third party photograph of the Adams Morgan neighborhood did not qualify as fair use, reversing and remanding the District Court’s summary judgment order.
In connection with organizing the Northern Virginia International Film and Music Festival, Violent Hues Productions, LLC posted a cropped version of a picture of the famous neighborhood in Washington DC. The photograph had been taken by Russell Brammer, a commercial photographer who both licenses his photos as stock imagery and sells physical prints. As Brammer had not authorized this use of his work, he brought a copyright infringement action against Violent Hues.
After the District Court had granted summary judgment on the grounds that Violent Hues’s use was fair use, Brammer appealed.
The Court of Appeals analyzed each of the factors for the “ultimate test” of fair use (as outlined in Cariou v. Prince, 714 F.3d 694, 705 (2d Cir. 2013)), and concluded that there was no fair use defense applicable in this case. The court analyzed the factors as follows:
Purpose and character of the use
This factor weighed against Violent Hues because (a) the changes made were minimal (and thus the use of the work was not transformative); (b) the use of the photograph on Violent Hues’s website was to promote a for-profit film festival;
and (c) Violent Hues’s good faith defense is not effective because copyright infringement is a strict liability offense (i.e., it does not require a culpable state of mind).
Nature of the copyrighted work
The second factor analyzes the “nature of the copyrighted work” or the level of protection to be afforded the copyrighted work. In this case, the court determined that Brammer made several creative choices (e.g. the camera setup or the shutter speed and aperture combinations of the camera) that entitled the photograph to thick (as opposed to thin) copyright protection. Thus, unauthorized reproduction is more likely to constitute infringement.
Amount and substantiality of the portion used
The third factor, which addressed the “amount and substantiality of the portion used”, also weighed against Violent Hues because they “merely removed the negative space and kept the most expressive features, which constituted the ‘heart of the work’”.
Effect of the use upon the potential market
The fourth and final factor – “the effect of the use upon the potential market for or value of the copyrighted work” also weighed against Violent Hues. The licensing market for Brammer’s work was dampened because he did not receive any license fee. The court also acknowledged that Brammer had licensed this specific photo before, although that was not necessary evidence to reach this finding.
This decision is significant for copyright owners, especially as the District Court’s decision had been heavily criticized as Violent Hues put the photo to commercial use, and avoided paying a due license fee to the copyright owner. While some photographers allow free use of their works, such as through Creative Commons licenses, no such license applied in this case.
When selecting online photographs, use only reliable stock photo websites, and avoid sites that might be re-circulating copies of original photos without permission. Copyright notices and conditions of use should be clearly indicated for all work made available online, not just photographs.