In June, I wrote about the deeply flawed ruling in Brammer v. Violent Hues after the District Court for the Eastern District of Virginia handed down some rather inscrutable opinions about an otherwise straightforward copyright infringement case. A production company company called Violent Hues used a photograph belonging to Russell Brammer on a website for the purpose of promoting a film festival. The district court held that the use was a fair use predicated on errors of both fact and law, which are now enumerated in Brammer’s appeal to the Fourth Circuit, filed on October 22. I suspect Brammer will prevail in this appeal, but I wanted to comment on one aspect of the response.
In the days before a now woefully unclear principle called “transformativeness” was introduced to the fair use doctrine (see discussion here), Brammer would have been a very simple case. A photograph was copied and displayed for commercial purposes and used without a license. The defendant would not have a leg to stand on, and the complaint would end in settlement.
But as described in this recent post about Richard Prince’s unlicensed use of Donald Graham’s photograph to make “fine art,” various parties have sought to leverage the ambiguous nature of “transformativeness” in order to assert that it means little more than using a protected work in a context the original author had not exploited at the time of the infringing use. I know that’s a mouthful, but such is the nature of twisted logic.
In Brammer, the lower court held that Violent Hues had only made use of the informative aspect of Brammer’s photograph, displaying it in an informational context on a website, and so this was different from the photographer’s original, expressive purpose. This line of reasoning is fraught with destructive implications; but one comment I made half-jokingly in my June post was that if, indeed, a court were able to identify two images (one expressive, one informative) in a single photograph, then Mr. Brammer ought to sue for infringement of his right to make derivative works.
I say this was only half joking because, as Brammer’s appeal points out, one significant pitfall of an over-broad interpretation of “transformativeness” is that it can eliminate the author’s right to prepare derivative works as protected under copyright law §106(2). In fact, the brief refers to a highly-controversial ruling by the Second Circuit which held that Richard Prince (yeah, him again) had made fair use of several photographs belonging to Patrick Cariou, stating “Cariou and its predecessors in the Second Circuit do not explain how every ‘transformative use’ can be ‘fair use’ without extinguishing the author’s rights under § 106(2).”
So, I wasn’t really kidding. Either the district court erred in holding that a photograph can be metaphysically split into identical twins with entirely separate identities, or Violent Hues infringed Brammer’s right to prepare his (expressive) work as a derivative (informative) work. Spoiler: the initial parsing of the image by the district court is preposterous as a matter of law, art, culture, and basic reason.
The brief goes on to assert, “The Second Circuit heard the criticism [about the derivative works right] and received the message that its post-Campbell holdings went too far. In subsequent decisions, it dialed back what can qualify as transformative, holding that the Google Books and Cariou cases presented unique factual circumstances, and limited what can be viewed properly as a transformative justification.”
As addressed in other posts, the “transformativeness” doctrine is a squirrelly little bugger. It has caused splits among circuits and, as we see in Brammer, can result in a federal appeal where settlement should have been the natural outcome. It seems likely that before long the Supreme Court will need to chisel this particular doctrine into some kind of coherent shape. As such, rights holders should demand that its meaning remains tethered to the way in which it was first applied in Campbell v. Acuff-Rose in 1994.
Assessing “transformativeness” is a consideration under the first fair use factor, which weighs the “nature and character of the use.” It was first weighed in a manner entirely consistent with the spirit of fair use, which is to limit copyright’s protections so that they do not stifle otherwise unachievable new forms of expression. Thus, a use which “transforms” by adding to or amending an original work in a way that creates a wholly new expression is well-suited to consideration for its amount of “transformativeness,” especially if the nature of the original work is intrinsic to the new expression.
As first applied in Cambell, the Supreme Court held that a consideration of “transformativeness” favored the manner in which 2 Live Crew had used the song “Oh, Pretty Woman,” not solely because the raunchy rap version was new, but because there was an extent to which it parodied the spirit of the original, and this commentary was constituent to the nature of the new expression.
Clearly, the considerations in Campbell are a far cry from a case like Brammer, where no new expression was created, but where the defendant simply used a whole work, as is, without permission (not that different from Prince v. Graham, really). Still, the errors made by the district court in this otherwise simple case reveal the extent to which the “transformativeness” doctrine is in dire need of clarification.
As I said in the past, I think the word itself is problematic. It is just too easy to shift perspective from considering how a use may “transform” a creative work to a consideration of how a use may have a “transformative” effect on an audience, or on society as a whole. Both of these distinct perspectives have been present in fair use analyses, but arguably only the former truly examines expression itself, which is the purview of copyright law. So, I expect Russell Brammer will prevail in this appeal, but we have not heard the last of these semantic adventures to the edge of reason aboard the “S.S. Transformative.”