Law Firms Need to Be Cautious of Loopholes in Copyright Protections

Until recently, many believed that there was solid copyright protection for original works of authorship including literary, dramatic, musical, photographic and artistic works, such as poetry, novels, movies, songs, computer software and architecture.

However, in a decision rendered in Russell Brammer, Plaintiff, v. Civil Action No. 1-17-cv-01009 Violent Hues Productions, LLC, Defendant that assumption about copyrighted material being protected changed.

This case focused on a little known loophole in copyright protections that the court used to rule that the defendant was not guilty of copyright infringement because the way they used the content was different from the way the original content was used.

Photographer plaintiff Russell Brammer, took a time-lapse photograph of Washington, D.C., and posted it on his image-sharing websites and personal website. The defendant, film festival organizer Violent Hues, posted a slightly altered, cropped version of Brammer’s original photo on its website combining it with information on what activities people could do in Washington.

Plaintiff Brammer sent Violent Hues a demand letter that resulted in the defendant promptly removing the picture and indicating that he did not know that it was copyrighted. Brammer proceeded to sue Violent Hues, alleging copyright infringement and the removal of copyright management information. The defendant moved for summary judgment, alleging fair use.

The issue was whether using a cropped version of a copyrighted photograph on a film festival website was fair. The court found that Violent Hues’ use was fair and granted summary judgment in its favor.

The court ruled that Violent Hues’ use of Brammer’s photograph was fair, concluding that the purpose and character of the infringing work weighed in favor of Violent Hues, since its use was transformative and non-commercial.

The court looked at whether the new image created by Violent Hues from the original image by Brammer was transformative, meaning how much the image was changed. The court used a major precedent for a 2009 ruling, that a work “can be transformative in function or purpose without altering or actually adding to the original work.”

According to the court, “Brammer’s purpose in capturing and publishing the photograph was promotional and expressive,” while “Violent Hues’ purpose in using the photograph was informational.”

The photographer’s photo promoted the city and was an expressive representation of the city. The same photograph was cropped and adapted to feature information on what people could do in Washington. The defendant, Violent Hues, argued they used the picture in good faith after allegedly checking for the presence of a copyright on the photo. When none was found, they proceeded to use the shot. When they received a demand notice to remove it, they did so promptly.

The court further opined that the nature of the copyrighted photo favored the defendant because Violent Hues “used the photo purely for its factual content,” and the work had been previously published. The court also decided using a cropped version of the original Brammer picture was fair use because they “used no more of the photo than necessary to convey the photo’s factual content.”

According to the court, one of the other pieces of information it took into consideration was that there was “no evidence that Violent Hues’ use had an adverse effect on the market for the [original] photograph.” In fact, the court stated that the photographer was paid for his shot by other users after Violent Hues included the photograph on its website. This apparently was “demonstrating that Violent Hues’ use [of a cropped version of the photo] did not affect the market for the photo.”

The court cited four factors they considered in rendering their decision and in determining whether or not the use of the photo fell under the protection of fair use. The factors considered were:

1. The purpose/character of the use, including whether the use is commercial
2. The nature of the copyrighted work
3. The amount of the portion used in relation to the original copyrighted work as a whole
4. The effect of the use on the potential market for or value of the original copyrighted work

In this case the court's decision said the original picture by Brammer was promotional and expressive. It then extrapolated and said the copied and cropped image was informational, meaning it was transformative. The court said, “While Brammer’s purpose . . . was promotional and expressive, Violent Hues’ purpose . . . was informational: to provide festival attendees with information regarding the local area [. . .] this use was non-commercial, because the photo was not used to advertise a product or generate revenue.”

The court stated copying the content was done in good faith, with the good faith claim backed up by the fact that Violent Hues took down the content after the photographer contacted them. And, the content “was used for its factual content,” not for the creative nature or features.

The photographer had published the picture without copyright notification attached, causing the court to suggest that, “the scope of fair use is broadened when a copyrighted work has been previously published.”

If someone who is allegedly infringing only uses a portion of the original content, it may then be considered fair use. In this case, Violent Hues used roughly half of the original photo. Nonetheless the amount of the photo they used was not the issue. Instead, the court said: "no more of the photo than was necessary [was used] to convey the photo’s factual content and effectuate Violent Hues’ informational purpose.”

The most important factor in this case was that Violent Hues’ use of the original content did not impact the potential market for the original photo. The Virginia court quoted the Supreme Court in saying that the effect of the use on the potential market or value of the original copyrighted work was “undoubtedly the single most important element of fair use.”