Tag: Brammer v. Violent Hues

Fourth Circuit in Brammer: A Win for Copyright Sanity. A Guide for Users of Works.

Visual artists should be very relieved by last week’s decision at the Fourth Circuit Court of Appeals, overturning the District Court’s finding of fair use in Brammer v. Violent Hues.  Frankly, fair use advocates should be happy about the ruling, too, because nobody who sincerely cares about copyright should celebrate an error of law.  If a court simply disregards the exclusive rights of authors, as the District Court did in this case, the fair use doctrine becomes a meaningless exception to a non-existent rule. 

“…difference in purpose is not quite the same thing as transformation.”

If I had to pick one takeaway from this case for users of works in the digital age, it would be the citation to this quote from Infinity Broadcasting Corp. v. Kirkwood (1998).  As mentioned many times on this blog and elsewhere, the “transformativeness” test, which became part of the fair use analysis after 1990, is a troublemaker.  For a great summary describing how and why it became a troublemaker, I recommend this three-part post written by Scott Alan Burroughs on Above the Law.  

To stress what a pain in the butt this concept can be, I stated in a recent post that simply “placing a work in a new context” is not “transformative.”  But even using the term “context” is nettlesome because courts may use that term to describe “transformative” uses that are non-expressive.  For instance, the Fourth Circuit in Brammer has provided a handy explanation of the distinction between those uses and the infringement committed by Violent Hues.  The opinion states that there are two viable paths for finding fair use when a contextual (i.e. non-creative) change is “transformative”:  technological uses and documentary uses …

Technological

“In the first category, copyrighted works provide raw material for new technological functions. These functions are indifferent to the expressive aspects of the copied works. For example, we have held transformative the total reproduction of student essays for a plagiarism detection service because the database served an “entirely different function” that was unrelated to the expressive content of those essays.”

Documentary

“In the second category, copyrighted works serve documentary purposes and may be important to the accurate representations of historical events. These representations often have scholarly, biographical, or journalistic value, and are frequently accompanied by commentary on the copyrighted work itself.”

Admittedly, even documentary does not easily fit into the non-expressive family of fair uses because documentary is expressive and, perhaps most importantly, scholarship, biography, journalism, and commentary were already stated among the purposes of fair use fourteen years before Judge Pierre Leval wrote the paper, Toward a Fair Use Standard, which added the concept of “transformativeness” to the fair use test.  

We’ll leave that can of worms unopened for now. Suffice to say that Violent Hues’s publishing Brammer’s photograph on a website to promote a film festival does not describe either of the court’s two contextual fair uses. “What Violent Hues did was publish a tourism guide for a commercial event and include the Photo to make the end product more visually interesting,” states the opinion. “Such a use would not constitute fair use when done in print, and it does not constitute fair use on the Internet.”

It is so easy to click, edit, and repost any image that pausing to consider legality is apparently overwritten as a necessary step.  (And the defendant in this case is a professional image-maker who should have known better.) I’ve said it before in posts about fair use.  There are too many messages whirling around in cyberspace, denigrating copyright owners’ rights and disfiguring the nature of fair use, that it is easy to imagine how a gist of these ideas seeps into the mind of a user about to publish a work he has no right to use. 

For users who would prefer not to wander into the tall grass where attorneys, scholars, and jurists debate the meaning (or lack thereof) of “transformativeness,” there is little need to go there.  The Fourth Circuit in Brammer has provided a pretty basic set of rules for the use of works “in new contexts,” which I presume to summarize as follows:

If you are not engaged in a fairly large-scale technology enterprise using the non-expressive aspects of a corpus of works to power a new and useful system, your use is very likely not “transformative.”

If you are not producing a work, in which you comment upon the used work, your use is very likely not “transformative.”  

If you are not producing a new expression that depends upon altering the used work, your use is very likely not “transformative.”

If, you “find”a photograph online that you think would jazz up your web page, no matter what you think it’s communicating, either get permission, make sure it’s free to use, take your own picture, or license a cheaper picture because your attorney is probably going to fail—at least on appeal—in any attempt to TRANSFORM your lapse in judgment into a sound fair use defense.  

Meanwhile, don’t try assessing “transformativeness” at home when even the legal experts are still arguing about what it means.  As Burroughs addresses in his posts, the “transformativeness” test does not have the caselaw-to-statutory history that produced the four-factor test for fair use codified in 1976.  This is unfortunate because a prospective user of a work should be able to conduct at least a preliminary fair use test without an attorney; and the original four-factor test, while subjective, is much easier without the “transformative” filter.  

Most simply, a user like Violent Hues should jump straight to Factor Four and ask themselves whether the proposed, unlicensed use, if made repeatedly by other parties, would deprive the copyright owner of a market opportunity that is rightly his to exploit.  The unequivocal answer to that question in this case was yes.  If a photographer does not have the right to license his images, then his exclusive rights in the copyright law do not exist; and if those rights do not exist, then neither does the fair use exception or, for that matter, the entire miscarriage of reason that produced this fiasco of a lawsuit.

When Fair Use Threatens the Derivative Works Right

At the same AI and copyright round-table referred to in my last post, Stephen Carlisle of Nova Southeastern University posed this question:  Is the application of “transformative” analysis under the fair use doctrine threatening to extinguish the derivative works right?  This grabbed my attention, partly because it jibed with comments I made in at least two posts about Brammer v. Violent Hues; but for readers who don’t follow copyright law for fun, I’ll try to explain …

Section 106(2) of the U.S. copyright law grants authors the exclusive right to prepare derivative works.  So, the filmmaker who wants to adapt your novel into a movie must obtain your license to prepare a “derivative work” based on said novel (a.k.a the “underlying work”).  If the film creates original visual material, like a creature that might make a cool action figure, the action-figure producer would have to obtain the filmmaker’s license to prepare a derivative work based on that original design. If another party proposes a Netflix series based on minor characters from the novel, that license may remain with you as the original book author; with the filmmaker who made the first adaptation; or be shared depending on certain variables and agreements.

Suffice to say, derivative works are nearly always some use of underlying material in a new context; and  for the purposes of this post, it is fair to summarize the opinion in Brammer as holding that the use of a whole work in a new context from its original purpose was “transformative” under a fair use analysis.  So, because Brammer is an extreme example of a broader effort by certain parties to push the boundaries of fair use, this is what Carlisle was driving at with his comment; and he further noted that the word transform is part of the statutory definition of a derivative work …

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.”

So, it is not hard see how a misreading of “transformative” in a fair use analysis can end up validating infringement of the author’s derivative works right.  Moreover, once that “transformative” box is checked, the likelihood of finding fair use increases considerably.  This is reasonable enough when a use is made to produce a truly new expression; but when “transformative” becomes synonymous with “placed in a new context,” the courts are in danger of abrogating the foundation of nearly all licensing protected by the bundle of rights vested in the author.

Almost the only check on such a reading of “transformativeness” is factor four of the fair use test, which assesses the commercial nature of the use; and unfortunately, commerciality may be equally misconstrued.  For instance, if monster maker Jordu Schell sculpts an original creature he intends to sell as a limited-edition piece to collectors, his exclusive right under 106(2) prohibits some not-for-profit entity from 3D printing miniature copies of the monster to give away at a fundraising event. 

But based on the flawed fair use analysis in Brammer, the not-for-profit defendant could argue that their use is “transformative” because 1) it is very different from the context of fine-art collectors; 2) because their use was communicative rather than expressive;  and 3) because their use was non-commercial on the basis that they did not sell the figurines.  Prior to all the confusion sown by these squishy “transformative” arguments, any court should easily be able to call bullshit on such reasoning and recognize that the defendant would have infringed Schell’s exclusive right to prepare derivative works.  End of discussion.

Like fair use, the derivative works right was codified in the 1976 Copyright Act, but its emerging principles can be found in caselaw dating back to at least the mid eighteenth century in both the U.K. and the U.S.  With the development of photography, followed by sound recording, motion pictures, etc., new technologies naturally fostered new ways to use the “heart” of an underlying copyrighted work.  And because law is usually slower than invention—let alone a thorough understanding of a new medium—there are several examples throughout the nineteenth century in which one could argue that copyright law was conveniently interpreted beyond statutory rationale to find infringement.

Scholar Oren Bracha offers such an analysis with respect to the case he considers seminal in the development of the derivative works right.  In Kalem Co. v Harper Brothers (1911) the fifteen-minute, silent film adaptation of Ben Hur was held by Justice Holmes to have infringed the authors’ exclusive right to “dramatize” their works under the statutory amendment of 1891.

There are actually a number of moving parts in to this particular case, but simply put, Bracha contends that Holmes stretched the meaning of “dramatize” in order to encompass the very new medium of motion pictures and then shoehorned a rationale to find contributory infringement. “The Kalem decision was thus a crucial transitory moment,” he writes.  The decision’s rationale was already based on the new model of copyright, but its legal reasoning still relied on manipulating the doctrines that were rooted in the the traditional print-bound model.”

One can interpret Holmes’s opinion in Kalem as legislating from the bench (although he did have ample precedent that copyright protects intangible expression*) or as a prescient understanding of copyright’s transition into the technological 20th century.  Or perhaps a bit of both.  That case was decided one year before the category “motion pictures” was added to U.S. copyright law and ninety years before the first Harry Potter movie was released.  And I doubt that anyone today would support Warner Bros. building a mega-franchise based on those books without honoring J. K. Rowling’s exclusive right to “prepare derivative works.”  

Presently, we are in the midst of another transitory period with new technologies allegedly posing new challenges to copyright law.  At least that’s the headline. But I’m not convinced that copyright is nearly so challenged in the 21st century as it was during the 19th.  No matter how one analyzes Holmes’s opinion in Kalem, there is no denying that he was contending with something truly revolutionary that challenged the court to consider the nature of copyright.  By contrast, a lot of tech companies today will liberally appeal to the virtue of innovation as a rationale to circumvent, ignore, or amend copyright law—including the effort to make “transformative” mean whatever serves the interest of the moment. But how many of the major “innovators” have actually invented something that poses new questions about copyrighted works and the exclusive rights of authors?

Returning to Brammer, for example, publishing a photograph on a website hardly requires a major theoretical inquiry in order to compare that conduct to publishing a photograph in a magazine or a brochure.  It’s just a different form of “reproduction” and “display” and should be about ten minutes work for any court.  Likewise, most of the major platforms are just variations on the capacity to display or broadcast creative works through computer networks—a fairly new experience for us as consumers, but not necessarily as groundbreaking from a copyright perspective as the platform owners would have us believe.

The relative novelty of streaming or downloading music and video doesn’t come anywhere close to posting the legal challenges triggered by the seminal technologies invented between the 1830s and the 1890s.  And in case after case, those courts generally tracked the “essence” of the author’s work as it was used in contexts far more exotic than almost any 21st century use trying to bamboozle us with notions of “transformativeness.”

It was out of that extraordinary period of invention—concurrent with the evolution of fair use doctrine—that the derivative works right was given shape and eventually added to the bundle of rights vested in the author.  To date, it seems to me that no technology or model has yet been invented that would justify the fair use doctrine encroaching upon the derivative works right.  Yet if decisions like Brammer are allowed to stand and various tech businesses had their way, that’s exactly what would happen.

*Turner v. Robinson (UK); Daly v. Palmer; Burrow-Giles v. Sarony; et al

Courts Being Led Down Rabbit Hole in Photograph Copyright Case

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