A film festival’s use of a stylized photo of a Washington D.C. neighborhood known for its vibrant nightlife was not a fair use that protected the festival from lawsuit alleging copyright infringement, the 4th U.S. Circuit Court of Appeals has ruled, overturning a controversial district court opinion from Virginia.

The 4th Circuit found that the district court had erred in finding that festival promotion company Violent Hues Productions LLC had met all four factors required to establish fair use when in fact it met none, and sent the case back to the district court.

The suit was filed by the photograph’s creator, Russell Brammer, who said Violent Hues used it on their website without attribution to promote the film festival’s location in the Adams Morgan neighborhood of Washington. Brammer had posted the image on the photo-sharing website Flickr with the phrase “© All rights reserved” beneath it.

In 2016, Violent Hues found the image, cropped it, and posted it on its website. Violent Hues owner Fernando Mico said he didn’t see any indication that it was copyrighted and he believed it to be publicly available. When Brammer discovered the unauthorized use, his attorney sent a letter requesting compensation, at which point the company removed the picture without paying. When Brammer sued, Violent Hues claimed an affirmative fair use defense, and U.S. District Judge Claude Hilton granted summary judgment in its favor.

But Judge Diana Gribbon Motz, writing for a unanimous panel, found that Violent Hues’ use of the photo was not transformative and was commercial in nature, and that the company’s argument that its actions were in good faith was irrelevant. Additionally, Motz wrote, the stylized nature of the original entitled it to “thick copyright protection,” and Violent Hues’ use was substantial and would have an adverse impact on the market for the original.

Motz wrote that the key question in deciding if a use is transformative is whether it “communicates something new and different from the original or [otherwise] expands its utility.” Because Violent Hues only cropped the image to remove negative space, the image’s meaning was not changed, Motz said. Furthermore, Violent Hues’ use of the image was expressly for its content. While the company claimed that its use provided film festival attendees with information, this didn’t create a substantially new function or meaning that “expands human thought,” as required by the test.

“[If] this were so, virtually all illustrative uses of photography would qualify as transformative,” Motz said. “Because of minimal changes to the photo’s content and context, we conclude that Violent Hues’ copying was not transformative.”

While Violent Hues didn’t generate revenue from the photo’s use, neither did it reach out to Brammer to ask for permission to use his image. Because the company is a commercial enterprise, its failure to pay the image fee also weighed against a finding of fair use, and the fact that Mico thought his use of the photo was fair meant very little, Motz said.

“At best, Violent Hues appears to have acted negligently,” Motz said. “Mico did not explain why this belief was reasonable given that all contemporary photographs are presumptively under copyright.”

Motz added that widespread use of the photo the way Violent Hues used it would result in an adverse impact on the market for the original. Because Violent Hues copied the “heart of the work,” Brammer didn’t need to show that the licensing market was depressed, although he did so anyway.

“[It] is clear that the copying here fails the ‘ultimate test’ of fair use: Violent Hues’ online display of Brammer’s Photo does not serve the interest of copyright law,” Motz said. “Instead, allowance of Violent Hues’ defense would frustrate copyright’s central goal. If the ordinary commercial use of stock photography constituted fair use, professional photographers would have little financial incentive to produce their work.”

David Deal of Charlottesville, Virginia represented Brammer on appeal. He said that the defense’s argument is all too common in copyright cases.

“In my practice, those facts fit three-fourths of the fact patterns of my clients’ cases. A commercial entity, big or small, says, ‘We got it off of Google images, how are we supposed to know [it was copyrighted]?” Deal said. “As an attorney that represents photographers, that’s 90 percent of the responses we get.”

While broad fair use arguments are common, Deal said, he believes the 4th Circuit made a clear distinction about the four factors required to establish fair use.

“The appeals court put into clear writing what everyone knew,” he said. “The court put an end to the notion that there’s some little window where that behavior is acceptable.”

The case now returns to Virginia’s Eastern District. Thomas Weir of Kirkland & Ellis in Washington D.C. represented Violent Hues on appeal. He did not immediately respond to requests for comment.

The 22-page decision is Russell Brammer v. Violent Hues Productions LLC (Lawyers Weekly No. 001-082-19). The full text of the decision is available online at sclawyersweekly.com.

Follow Matt Chaney on Twitter @SCLWChaney

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