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  • Henry Park

Fair Use is Not for Lazy Appropriators

In April, the Court of Appeals for the Fourth Circuit reversed a District Court decision finding that the use of a stock photograph was a fair use (Brammer v. Violent Hues Production, LLC, No. 18-1763, April 26, 2019) (Opinion hosted on The District Court found that the four fair use factors weighed in favor of the infringer. The Court of Appeals reversed finding that none of the fair use factors favored the infringer.

As the Court noted, fair use "is not designed to protect lazy appropriators" (Opinion at p5).

The first fair use factor -- the purpose and character of the use -- examines whether the use was transformative; whether it communicates something new and different from the original or expands its utility (Opinion at p6). To be transformative, a use must do more than repackage or republish the original work (Opinion at p7). The infringer cropped the stock image and used it on its website promoting a film festival. The infringer claimed that it transformed the work by providing information to attendees about the Adams Morgan neighborhood. The Court found that providing "information" through the photograph was not transformative and that if that use was transformative "virtually all illustrative uses of photography would qualify as transformative" (Opinion at 10). This factor favored Brammer.

The second fair use factor -- the nature of the copyrighted work -- examines the level of protection afforded to the photograph. The Court found that photographs generally received "thick" copyright protection (Opinion at 15). Brammer's made many creative choices: he set up a private location, and experimented with numerous shutter speed and aperture combinations. This resulted in a stylized image with vivid colors, bird's eye view, and vehicle traffic as streaks of light. This factor favored Brammer.

The third fair use factor -- the amount and substantiality of the portion used -- examines whether the infringer used more than necessary. The Court found the infringer took the most expressive features (Opinion at p17). Given that the use was non-transformative, this factor favored Brammer.

The fourth fair use factor -- the effect of the use upon the potential market for or value of the copyrighted work -- examines whether the infringer's use and the unrestricted and widespread conduct of the sort infringer engaged in would affect the potential market for the original. The Court found that the infringer's use was not transformative, commercial and therefore presumptively harmed the market (Opinion at p18). Further, the Court found that subsequent licenses cannot be used to show no harm to the market. This factor favored Brammer.

Image by Elmira Ashirova from Pixabay

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