My colleague Stephen Carlisle at Nova Southeastern University already made short work of the aberration of copyright law and fair use analysis that occurred recently in the District Court for the Eastern District of Virginia. But I wanted to expand on a few elements that caught my attention. In the case Brammer v. Violent Hues Productions, LLC, the court’s deference to the defendant’s appeals to good faith and fair use resulted in an opinion that so dramatically flies in the face of legal doctrine that (as Carlisle notes) it would obliterate copyright in photography altogether.
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.
Brammer sent a Cease & Desist letter in 2017, and Violent Hues immediately removed the image; but Brammer then sued for copyright infringement, and Violent Hues moved for summary judgment, arguing that it had made a fair use of the photograph. Before we get to that defense, though, we have to note this statement of facts from the opinion:
“Violent Hues’ owner, Fernando Mico, found the photo online. He alleges that he saw no indication that the photo was copyrighted and believed he was making use of a publicly available photograph.”
So, even prior to the court’s fair use analysis, it allows two substantial errors to be dispositive in this case. The first is overlooking the fact that an “indication” of copyright is not required. All works are automatically protected, if they were produced after January 1, 1978; and it’s hard to fathom how any judge would not know this. Hence, Mico’s assumption that a work is “publicly available” because it was found online is plainly invalid as a matter of black-letter law.
Second, even where a court might consider leniency for an unintended infringement made in good faith, then it seems this court did not consider it relevant that Fernando Mico is a professional filmmaker. Violent Hues is a production company offering “Script to Screen” services, and Mico even signed a distribution contract for his indie feature film in 2014. This is not some teenager who might be confused about the use of images in the digital age. This is a professional image-maker and copyright owner, who cannot reasonably claim to be so naive about images he “finds online.”
Transformativeness is Still a Doctrine Without Definition
The truly staggering aspects of this opinion are found in the court’s rationale for finding fair use. The fact that the interpretation of “transformativeness” here negates more than a century of copyright law related to photography should serve as compelling evidence that the doctrine remains incoherent and meddlesome at best. The opinion states:
“Here, Violent Hues’ use of the photograph was transformative in function and purpose. 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.” [Emphasis added]
This confluence of vagueness undermines copyright in photography at its core. By the logic of this opinion, if the makers of a pregnancy test want to make unlicensed use of Annie Leibovitz’s famous portrait of pregnant Demi Moore in a print ad, they’re free to do so because their “purpose” is different from Leibovitz’s original “purpose.”* And we could keep conjuring such examples ad infinitum. Based on this holding, any photograph may be used by any party as long as it can be argued that observers will interpret a meaning that is distinct from the photographer’s original intent.
That reasoning does not even square with the history of creative expression itself—let alone copyright law. It is widely understood in the world of art that the creator’s intent may vary considerably from the viewer’s interpretation, and neither understanding is necessarily “incorrect.” What are we to make, then, of photographs that are simultaneously expressive and informative—images that may be considered both journalism and fine art by one set of viewers, but perhaps scorned for various reasons by a different set of viewers? Unless a court is required to compare and contrast two expressive works (i.e. in a real fair use case), it has no basis for wandering into this semantic and subjective minefield.
Ordinarily, the courts are not expected to concern themselves with the metaphysics of art when straightforward, unlicensed copying of a work occurs, as it did in this case. The court contends that by placing an “expressive” work on an “informational” website, the use was “transformative,” thus tilting toward fair use. As Carlisle notes, however, the broadly-informational nature of the site itself has nothing to do with the fact that Mico selected Brammer’s photograph because it’s a “cool” image. In other words, it was chosen because of its expressive qualities, regardless of the context in which it was used.
This reasoning is supported by the fact that, as a professional image-maker, Mico can be presumed to have judged the difference between Brammer’s expressive work and a more pedestrian, informative, photo of the same neighborhood. In fact, the more expressive a work is, the less we can generally consider it to be informative, and a time-lapse photo of Adams Morgan is hardly a literal representation of the experience the visitor is likely to have (at least while sober). Then, because the photograph was chosen to promote tourism as a feature of attending the film festival, the court erred in finding the use to be non-commercial under the first factor.
Still, even if Brammer’s photo were less “cool,” (i.e. more informative), it should not matter; and the court has no legal grounds for even weighing the amount of expressiveness in this particular case. Exploitation of a copyrighted photograph — even a “pedestrian” image — without a license is an infringement. End of discussion.
Regardless of anyone’s opinion of the original work, the grounds for fair use analysis under the “transformativeness” test are a) if the user alters the original work in a way that creates a truly new expression; or b) if use of the work is essential to the functioning of a new technology or service that is itself transformative to society—and this includes the case (Vanderhye v. iParadigms) cited by the Court to support its application of “transformativeness.”
In Brammer, Violent Hues makes no claim of fair use to create a new expression, and there is nothing transformative—based on either case law or common sense—about using a photograph to boost tourist attractions while promoting an event. Since Violent Hues’s use meets neither standard, “transformativeness” should not have received much consideration, let alone a finding in the defendant’s favor.
Undermining Copyright in Photography
The real hazard in this ruling—the one that should make photographers apoplectic—is that the court contends that Brammer’s photograph is expressive but that Violent Hues made a fair use because Mico somehow used only the informative aspects of the image based on the factual nature of the subject matter. The opinion states…
“The photograph in question contained creative elements (such as lighting and shutter speed choices) but was also a factual depiction of a real-world location: the Adams Morgan neighborhood in Washington, D.C. Violent Hues’ [sic] used the photo purely for its factual content, to provide festival attendees a depiction of the Adams Morgan neighborhood.”
This metaphysical parsing of the expression from the information in Brammer’s photograph inverts 124 years of legal doctrine. Since the mid-19th century, it is well- established law that ideas and facts are not protectable while creative expressions are protectable; and this principle collided with photography near the end of the century because it was plainly understood that a camera always captures whatever “facts” are placed before the lens. Thus, the copyrightability of photographs was challenged in 1882 in Burrow-Giles v. Sarony, and affirmed by the Supreme Court in 1884.
Since then, both copyright law and our understanding of photography have evolved. And in both cases, it is sufficient that a human actor create the photograph, whether he painstakingly arranges every element in front of the lens or makes snap decisions to capture ephemeral chaos on a city street. In neither case do we apportion incremental authorship of a photo relative to the “amount of factual information” it contains. The whole work—expressive and informative together—is protected and the bundle of rights are vested in its creator. Such subtle distinctions are only made when a court must consider whether a subsequent work infringes a prior work, but that is not the circumstance in Brammer.
This may be confused with the doctrine of independent creation, which allows for the fact that two photographers are likely to capture nearly identical images of a given subject (e.g. of Niagara Falls). But this only means that Photographer A may not sue Photographer B for infringement since neither can copyright Niagara Falls itself. But apropos this particular case, both photographers would have copyrights in their individual images, and neither photo may be used to promote a Niagara Falls hotel without license.
To underscore how absurd this ruling is, if it is truly the Virginia Court’s opinion that Brammer’s “expressive” photograph is separately an “informative” photograph, then Brammer should not only appeal, but he should also sue for infringement of his right to prepare derivative works. This is preposterous, of course, because a copy of a work cannot be a “derivative” work; but somehow, by virtue of internet magic and the fog of the transformativeness doctrine, the court here sees a separate image fixed in an identical copy. Expect this ruling to be appealed and overturned.
* I purposely cited the Moore photograph because Leibovitz lost an important fair use case when this image was parodied by Paramount studios in 1998 for the promotion of the film Naked Gun 33 1/3. The distinction is essential to illustrate how far the idea of “transformativeness” has strayed from finding fair use that supports new forms of expression.