Oral arguments were presented this week at the Fourth Circuit Court of Appeals in the case of Brammer v. Violent Hues Productions, Ltd. I first wrote about this story in June of 2018 after a district court in Virginia concurred with an incomprehensible fair use defense—one with implications that threaten the interests of copyright owners in every category. To quote the summary I used in my June post:
At issue is a time-lapse photograph of Washington D.C.’s Adams Morgan neighborhood taken by Russell Brammer in 2011 and registered for copyright in 2016. Also in 2016, a cropped version of the image was used without license on a website suggesting “things to do” in Washington as ancillary promotion of the Northern Virginia Film Festival, which is organized by Violent Hues Productions.
Violent Hues is owned by Fernando Mico, who stipulated that he found Brammer’s photo on the web and assumed it to be in public domain. Why this is reasonable conduct, especially for a professional in visual media, is a mystery to me; but suffice to say, the Fourth Circuit Court of Appeals is now weighing a fair use claim that never should have survived beyond its first syllables.
Violent Hues asserted fair use on the grounds that its use was “transformative” (under the first factor) because Brammer’s original purpose was “expressive” while Mico’s purpose was “informative.” Right there is where the district court should have rejected the fair use claim and recognized that the defendant’s logic not only flies in the face of more than a century of precedent, but that it would have the effect of vitiating copyright at its core.
A fatal flaw in the defense’s reasoning is that it rests on an assumption of an observer’s interpretation of a photograph—either as “expressive” or “informative”—-which should never be a consideration in this kind of copyright infringement claim. The “ordinary observer” is only relevant in copyright cases that compare and contrast two different creative expressions where a first author claims that the second author has copied his work (e.g. Blurred Lines). This is not that kind of claim.
Here, the defendant did not make a new expression of any kind. He merely reproduced and publicly displayed a visual work without adding anything new that might remotely qualify the use for consideration under the doctrine of “transformativeness.” Hence, the district court should not have given the rest of the fair use analysis any weight. If the courts find that it is sufficient to do nothing more than move a protected work from one context into another in order to advance a fair use defense, then Brammer has the potential to do great harm to copyright. Because context is always fluid.
Neither authors nor their works are required to remain in contextual lanes. A photographer who initially presents her work as “fine art” in a gallery is free to license one of her images for use in an advertisement, or to reject such an offer if she chooses. This example is exactly comparable to the issues in Brammer. It does not matter what Russell Brammer’s intention was when he made the photograph or what Mico’s intention was when he used the photograph. To conclude otherwise would obliterate the foundation of nearly all licensing because a wide variety of uses—probably most uses—are contextually distinct from the authors’ original intent at creation.
For instance, the story just broke that the exercise equipment and subscription service Peloton is being sued for $150,000,000 for failing to obtain synch licenses for over 1,000 songs used in its exercise videos. Assuming that’s a factual claim, will Peloton present a fair use defense that the artists and songwriters “never intended to make exercise music” and that, therefore, the uses in their videos are “transformative”? If Violent Hues’s defense holds water, such a claim, ridiculous as it is, would suddenly seem to have merit.
Courts will only muddy well-established doctrine when, for no reason, they attempt to parse the myriad intentions of authors, the mercurial interpretations of observers, or the claimed purposes of users of creative works in cases like Brammer. As opined in my previous posts, the reasoning of the defense seeks to metaphysically divide a photograph into its “expressive” nature and its “informative” nature and then argue that the author only exploited the former, leaving others to freely exploit the latter. This is absurdity fomenting chaos in copyright law. As counsel for Brammer noted in his address to the panel, nearly all photographs are, on some level, informative and expressive at the same time.
I will also reiterate the premise that if the court upholds the claim that an exact copy of a photograph was “transformed” from an expressive work into an informative work, then it must conclude that Violent Hues infringed Brammer’s right to prepare derivative works under §106(2) of the copyright law. This is also an absurdity but is legally sound IF the defense’s fair use argument asserts that a single work can have multiple identities based on the mental states of users and the presumed interpretations of observers. Such discussions are fine for art historians and critics but are untenable as a matter of law.
As Justice Holmes stated in the majority opinion in Bleistein v. Donaldson (1903), “It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.” This was an opinion on the copyrightability of visual works made for advertising purposes; but Holmes rather presciently advises that copyright law is not well served when the judiciary presumes to play the role of art critic.
Unfortunately, because the district court agreed with Violent Hues’s fair use premise, the rest of the four-factor analysis becomes relevant; and this week’s oral arguments were frustratingly devoted to a lot of discussion about the commercial v. non-commercial nature of the use as well as the consideration under the fourth factor as to whether the use may cause potential market harm to the original work. Neither consideration should ever have been weighed because the defendant’s use was not “transformative” in the first place. But here we are.
I will also note the fact that counsel for Brammer implied at one point that his client might have preferred not to have pursued this particular claim in federal court but that “we have no small claim” option. This caught my attention because I actually wrote a post theorizing that this particular case seemed well-suited to the kind of small claim provision advocated by the CASE Act. As it stands, Brammer has proceeded with a relatively small claim that, to no fault of his, now has huge implications because the district court erred so egregiously. Let’s hope the appeals court reverses the decision.
Potion image by popaukropa