Correcting an Insane Fair Use Ruling

Appendix B from the Fourth Circuit Judgment

Back in July 2018, a district court in Virginia handed down a ruling that sent shockwaves through the photography community. To put it simply, it found that taking an image off of the internet and using it on your website, even for a seemingly commercial purpose, was a fair use.

To put it mildly, this would have been a disaster for photographers that earn a living licensing images for use elsewhere, whether directly, through stock photo sites or other middlemen.

Most legal experts felt the ruling would likely be overturned on appeal but that didn’t stop photographers from decrying the ruling and worrying about its potential implications.

Fortunately for those that were worried, the Fourth Circuit Court of Appeals handed down a widely-expected judgment that overturned the lower court. In fact, not only did the court find that defendant’s use wasn’t a fair use, it found that none of the fair use factors favored them.

So what happened? Why did two courts come to two radically different conclusions and what does this mean moving forward?

To answer that, we’re going to first look at the case itself and then why both of the courts ruled the way they did.

The History of the Case

Northern Virginia Film Festival Logo

The case itself pits photographer Russel Brammer against Violent Hues Productions.

Violent Hues produces Northern Virginia Film Festival and, as part of the site for the event, provided a “things to do” page that offered attendees guides on where to go and what to do outside the festival.

The page featured multiple photographs of cities and attractions nearby and one of those images was a cropped version of a photo taken by Brammer. Brammer sent a cease and desist letter to the company and the photo was quickly removed but Brammer then followed it up by filing a lawsuit.

Violent Hues, in a bid to defend themselves from the lawsuit, attempted to claim that the use was a fair use. To many at the time, this seemed to be a long shot argument and the case wasn’t seen as extremely important, just a run of the mill dispute between a photographer and a site using his work without permission.

However, District Judge Claude M. Hilton brought the case into the national spotlight when he issued a summary judgment in favor of Violent Hues, finding that the use was indeed a fair use.

This prompted a near-immediate appeal by Brammer and his attorney, which sent the case before the Fourth Circuit Court of Appeals. There, Brammer has clearly found a more receptive audience as the court overturned the district court ruling, and then found for summary judgment in his favor.

But why did it get to this point where photographers were left hoping the appeals court would bail them out? To answer that, we have to first do a quick recap of fair use itself.

A Quick Fair Use Recap

Copyright, typically, grants the creator of a work (or the rightsholder) the exclusive right to do certain things with a work. This includes the right to make copies, publicly display a work, perform it or create derivative works based upon it.

Fair use is an exemption to those rights that allow others to use a copyrighted work in a way that would, otherwise, be an infringement but is permitted here.

When determining whether a use is a fair use, courts examine four factors, they are:

  1. the purpose and character of your use
  2. the nature of the copyrighted work
  3. the amount and substantiality of the portion taken, and
  4. the effect of the use upon the potential market

The first and fourth factors are considered to be the most important, however, all have to be weighed.

Based upon these factors, the courts make a determination if a use is fair or not and it’s easy to see how the factors can be seen as subjective and how reasonable people (and courts) can come up with radically different answers on fair use questions.

This, however, is not one of those cases. The district court, by any reasonable standard, gave a deeply flawed interpretation of the four factors that, if upheld, could have made nearly all unauthorized reuse of photography a fair use.

Fortunately cooler heads have prevailed but it’s worth how the court got there in the first place.

The District Court Ruling

You can read the full district court ruling here on the Copyright Alliance website.

When looking at the four factors, the district court found in favor of Violent Hues on all four.

With the first factor, it found that Violent Hues’ use was transformative saying that, “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.”

The ruling also cited the case A.V. ex rel. Vanderhye v. iParadigms, L.L.C. (also a 4th Circuit case), which found that Turnitin’s use of student essays in its database was a fair use even though it didn’t alter the work drastically but merely used it for a very different purpose.

Disclosure: I am a paid blogger and consultant for Turnitin though I was not involved in that case.

Further, the district court also found that the use was non-commercial since it wasn’t used directly to promote the event and further claimed the use was in good faith since Violent Hues’ owner “found the photo online and saw no indication it was copyrighted.”

In analyzing the second factor, the district court found that it also favored the defendant, saying the work was more factual than fictional or artistic. Further, since the work had been previously published, that further pushed the factor in favor of fair use according to the court.

With the third factor, the court found that Violent Hues had cropped out approximately half of the photo and found that this factor also favored fair use.

Finally, with the fourth factor, the court found no evidence that the use had harmed the potential market for the original photograph. The court specifically noted that, according to the Supreme Court, this is the most important factor and notes that Brammer made several of his sales of the photo after Violent Hues used the image.

This was bolstered in the court’s eyes by the fact that Brammer no longer actively markets the photo. This means that, in the court’s eyes, there was no market to harm.

Since, in the court’s view, each of the factors favored Violent Hues, the court felt it had no option but to grant it summary judgment, dismissing the case without a trial.

The Appeals Court Ruling

You can read the full appeals court ruling here on the Copyright Alliance website.

The Fourth Circuit Court of Appeals, in its evaluation, came to exactly the opposite conclusion, namely that none of the four factors favored Violent Hues or the use being a fair use.

With regard to the first factor, the court found that the defendants made “no apparent transformation” to the work and simply cropped it to remove negative space. “This change does not alter the original with ‘new expression, meaning or message.’ Rather, the cropping appears to be purely functional, giving the Photo the same dimensions as the other images on Violent Hues’ website.”

The court went on to criticize the lower court’s interpretation finding that, “Of course, even a wholesale reproduction may be transformed when placed in a ‘new context to serve a different purpose,’ but the secondary use still must generate a societal benefit by imbuing the original with new function or meaning.”

The ruling noted that other courts have typically found such contextual changes only sufficient in cases where there is a new technological use, such as Google Book Search or the aforementioned iParadigms case, or documentary uses. According to the appeals court, this was neither.

The court further stated that Violent Hues’ ability to accomplish its goal with the site would not have been hindered by having to comply with Brammer’s copyright. Because of this, and the fact the court did determine the use WAS in fact commercial and the use was not in good faith (though not necessarily bad), the Fourth Circuit found that the first factor favored Brammer.

With the second factor, the court found that photographs are “generally viewed as creative, aesthetic expression of a scene or image” and thus are creative works even though they depict reality. The court also rejected the idea that Brammer’s prior publication favored fair use, noting that the Supreme Court never said it applied to all cases involving it.

All of this combined to give Brammer the nod on the second factor as well.

With the third factor, the court agreed that Violent Hues used about half the photo but noted that, since the use was not transformative, “Considerable taking was not justified.” As such, the third factor also weighed against fair use.

Finally, with the fourth factor, the court noted that, if the challenged use became widespread, “It would adversely affect the potential market for the copyrighted work.” This was highlighted by the fact that a real estate company paid Brammer $1,250 to use the photo in a similar manner to Violent Hues.

As such, according to the appeals court, the fourth factor also weighs against fair use.

Combine that with the fact the court found that the use, broadly, does not serve the purpose of copyright, the court reversed the summary judgment, issuing one in favor of Brammer instead, and sent the case back to the lower court for the next steps.

Illustrating the Challenges of Fair Use

When I read the district court ruling separately, something stuck out to me. It seemed almost sane.

Though the ruling was one of the few I, as a layperson, felt comfortable calling insane, reading the court’s analysis made it seem completely reasonable. Even if the outcome would have been apocalyptic for photographers, the analysis seems sensible in its own bubble.

The appeals court, however, clearly did a more thorough job. It cited more cases, offered more detailed expiation and pointed out the flaws in the original analysis. However, the fact that it came to the EXACT opposite conclusion on all four factors points out two serious challenges when dealing with fair use.

First, if two courts can reach such opposite conclusions, then clearly two laypeople can as well. No matter how bright or well-intended, it’s easy to look at these factors and draw opposite conclusions.

Second, the case highlights one of the challenges with fair use. Fair use isn’t something that can be determined without a trial and a ruling. The judge (or judges in this case) or jury are what make the ultimate decision. This can make it very difficult, if not impossible, to know what is and is not a fair use.

This case seemed like a dead ringer when it was filed and didn’t even draw any attention until after the out-of-the-blue district court ruling. However, that ruling highlights just how difficult fair use can be to predict and why relying on it is often so dangerous.

While the flexibility of fair use is one of the things that makes it so great and so useful, it’s also one of the hazards, as this case shows.

Bottom Line

When it’s all said and done, sanity has been restored in this case. However, that doesn’t mean that the battles over fair use are over.

Fair use is a big, complicated mess and this case shows that even judges have trouble sorting through it. While this shouldn’t discourage people from taking advantage of fair use when appropriate or defending their rights when they have to, it’s a warning that nothing is certain.

Courts are inherently unpredictable and that unpredictability increases when discussing fair use.

This may be the latest strange fair use ruling, but we can be pretty sure that it won’t be the last.

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