Film festival’s online photo was fair use

A Virginia federal judge has ruled that a film festival’s use of a photograph taken from the internet without permission was fair use, much to the chagrin of the photographer who took the image and others in the photography world.

“In my opinion, there is almost nothing in this decision that is correct,” said attorney Mickey Osterreicher, general counsel for the National Press Photographers Association. “It appears to contain many errors regarding copyright law itself and findings that are contrary to those of well-settled copyright jurisprudence.”

The June 11 decision is Brammer v. Violent Hues Productions LLC (VLW 018-3-238).

The suit was brought in Virginia’s Eastern District in September 2017 by Russell Brammer, the creator of the photograph. Brammer alleged that Violent Hues Productions used his photograph on their website without attribution to promote the location of a film festival.

The image was a time-lapse portrayal of Washington’s Adams Morgan neighborhood. Brammer posted the image on online image-sharing websites and on his personal website.

In September 2016, Brammer applied for a copyright registration for the image, which was granted in July 2017.

In 2016, Violent Hues found the image online, and according to Brammer’s complaint, cropped the image and posted it on their website promoting the Northern Virginia Film Festival.

Fernando Mico, the owner of Violent Hues, said he saw no indication that the photo was copyrighted and believed he was making fair use of a publicly available image.

In February 2017, Brammer’s attorney sent Violent Hues a demand letter asking that the photo be removed. Upon being asked, Violent Hues immediately removed it.

In his complaint, Brammer alleged copyright infringement and removal and alteration of copyright management information. The second claim was later abandoned as it became unclear whether Mico actually was responsible for removing the copyright information before using the image.

In his opinion, U.S. District Judge Claude M. Hilton said he believed Violent Hues met the four factors required by 17 U.S.C. § 107 to establish fair use. Hilton ruled that Violent Hues’ use of the image 1) wasn’t for commercial purposes, 2) was a “factual depiction of a real-world location,” 3) used “no more of the photo than was necessary to convey the photo’s factual content,” and 4) didn’t negatively impact the market for the photograph.

“Because each of the four fair use factors favors Violent Hues, the Court finds that Violent Hues’ use was a fair use, and that there was no copyright infringement,” Hilton wrote in his opinion.

Brammer’s attorney, David C. Deal, said in an interview that he took particular objection to Hilton’s interpretation that Violent Hues’ use of the image was transformative.

“The most dangerous part is that the judge essentially states that as long as the user intends the photograph to be used functionally differently than the intended original use of the author, then that qualifies as transformative,” Deal said. “That’s a gross misrepresentation of the law. That’s not what transformative means.”

According to Deal, the judge also erred in saying that the photo was a factual representation of the subject matter.

“As long as something … is a factual representation of something, according to the judge, that somehow lessens the value and weakens the copyright,” Deal said. “This can’t be the law, because it eliminates 95 percent of the copyrights out there.”

On July 3, Deal filed an appeal with the 4th U.S. Circuit Court of Appeals.

Thomas Maddrey, an attorney representing the American Society of Media Photographers said that his organization is in the middle of filing an amicus brief in support of the appeal because of the possible consequences of the opinion.

“The logical conclusion is [this decision] cuts out copyright protection for everything,” Maddrey said.

Thomas Kennedy, the president of ASMP, spoke about the possible economic consequences of the court’s decision.

“The idea that all content wants to be free ignores the necessity of the content makers needing to make a living to continue making content,” Kennedy said. “I’m frustrated that legal scholars, and in some cases, court decisions, promote that orthodoxy and other commercial organizations benefit to the detriment of the people in my organization.”

Deal said that while the opinion is a problem in the short term, he feels confident the federal appeals court will side with him.

“I’m looking forward to getting things in front of the appeals court,” he said. “I’m confident this gets overturned.”

One of the lawyers who represented Violent Hues said the team looks forward to presenting its case at the 4^th Circuit.

“We believe that Judge Hilton’s summary judgment ruling is correct and vindicates our client’s fair use of the photograph in question,” said Thomas P. Weir of Washington.