Tag: Featured

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

Don’t Blame Internet Culture on Copyright

In response to a recent social media dustup, Mike Masnick writes on Techdirt, “…we’ve got quite a story today about how copyright is a total mess and not really fit for the way the internet works today.”

To his credit, Masnick does a solid job describing both the circumstances and the legal mechanisms relevant to a conflict that arose when a media company called Barstool Sports published a video made by writer/performer Miel Bredouw without permission, even posting the work as though it were their property.  But I disagree with Masnick that this is a tale about why copyright is a “total mess” because it’s really a tale about why social media is a total mess with a twist—that when anti-copyright pundits describe weaknesses in the law, they may inadvertently point to how it can be strengthened.  In fact, the lessons to be learned from this anecdote are instructive in ways I’m not surprised Masnick overlooked because, as I see it, this is a tale of two appropriations, and the contrasts between them are significant.

To recap as briefly as possible, Bredouw had an afflatus.  She noticed that the lyrics to “Slob on My Nob” by Three 6 Mafia fit rather neatly into the melody “Carol of the Bells” and decided to demonstrate this by recording herself performing the musical mashup in a brief video she posted to her YouTube channel.   Barstool Sports—run by a group of dudes who seem to be universally recognized as assholes—published Bredouw’s video to their Twitter account as though it were their own (i.e. uncredited).  When Bredouw asked that they credit her, she was ignored and so responded by submitting a DMCA takedown notice to have the video removed.  Twitter processed the notice and removed the video, and then Barstool got bitchy.

Apparently not the company’s first copyright strike, and seemingly fearful that their account could be terminated, Barstool sought to convince Bredouw to rescind her takedown notice by engaging in a fairly typical evolution of behavior, escalating from apologizing to begging to harassing her on all her social media accounts with bro-fans insisting that she stop ignoring Barstool’s demands for resolution.  At the begging stage, Barstool even offered Bredouw $2,000, which she waved at on principle.  

Thus, Barstool took its only course of action to mitigate the copyright strike and filed a (technically invalid) DMCA Counter Notice.  By statute, the counter-notice procedure requires that a platform restore an allegedly-infringing file within 10 days, unless the copyright owner provides proof that they have proceeded with legal action against the alleged infringer.  

Clearly, an underlying factor in this case is that Bredouw did not (and would never) register a copyright in her brief video performance; but that doesn’t make the story any less instructive.  At the same time, it should be noted that were this a conflict that could lead to litigation, Barstool Sports would very likely be held to have violated the law under penalty of perjury when it filed an invalid counter-notice to restore a video it had no reason to claim was removed in error.  

A Tale of Two Appropriations

It is a fun fact that tech pundits, including Masnick, have spent years attacking copyright on behalf of appropriations like those made by Bredouw while ignoring the much more problematic appropriations like the one made by Barstool.  Bredouw made use of two creative works* and combined these in a recorded performance that, under slightly different circumstances, would likely be considered fair use as a parodic commentary on both works and distributed in a manner that is not likely to cause harm to the market value of either work.  In short, it is the kind of creative expression the anti-copyright crowd loves to cite anecdotally as evidence that, “on the internet we are all creators,” meaning that people like Bredouw should not be targets of takedowns.

But the thing is that most copyright owners do not have a problem with uses like Bredouw’s video.  They often enjoy these mashups and parodies; and even when they don’t like them, many copyright owners are well-enough informed about fair use to let such uses remain online without response.  But the outright theft of material made by a commercial enterprise, like Barstool simply taking Bredouw’s video, is exactly the kind of appropriation that tens of thousands of copyright owners have a huge problem addressing online.  Just ask any composer or professional photographer how often they find a business entity using their work, without license, for marketing purposes.

Meanwhile, inasmuch as Masnick is willing to call the dudes at Barstool a bunch of asshats, he does not take any responsibility for playing a substantive role in evangelizing the very culture that results in their behavior.  The anti-copyright, sharing-is-caring, everybody’s-a-creator-now bullshit that Techdirt, the EFF, et al have been slinging into the atmosphere for years is constituent to the fact that even mainstream, commercial operators feel entitled to just take creative works and tell authors to go screw themselves.  In general, the copyright critics have been claiming to speak for the Bredouws of the web while (perhaps inadvertently) empowering the Barstools all along.  

So, one simple response to this type of appropriation is a change to the internal culture and practices of business enterprises.  If Barstool found itself inching toward account termination for accumulating too many copyright strikes, one solution would be to stop using material they know is not theirs! (No doubt there’s a sports analogy that would explain the concept.) But of course copyright owners cannot rely on commercial users to just do the right thing.  So, then what?

Well, oddly enough, Masnick provides one clue when he writes, “But what if it’s the counternotice that’s bogus? That’s… trickier. As the law is set up, then the only response is to sue.”  He’s absolutely right.  The counter-notice procedure, as it stands, leaves small and independent copyright owners with a nearly-toothless remedy in the DMCA; so perhaps this is one area of the 1998 statute that is overdue for revision.  For example, if a platform is allowed to review and reject a takedown request that looks illegitimate, why can’t it do the same thing with a counter-notice?  

That said, while I would disagree with Masnick’s use of the term “total mess” in this case, he is correct to imply that neither copyright law in general, nor the DMCA in particular, can adequately protect the limited scope of authorship entailed in Bredouw’s small video against a corporate entity’s smug appropriation of her work.  The DMCA simply was not written to anticipate small-scale appropriation of works that authors would never register for copyright.  And while it is admittedly not easy to develop an ideal—let alone universal—solution to address this strata of infringement, that is no excuse to call copyright wholly incompatible with “the way the web works today,” as Masnick claims.  

To the contrary, the way the web works today for countless copyright owners, whose works are registered, is that the DMCA is a game of chicken the rights holder plays with the infringer in which the latter often assumes that the former lacks the resources to sue.  Meanwhile, the major platforms have reaped the rewards while pundits like Masnick have told the rights holders to “quit whining and embrace the future.”  

Really?  Because stay tuned.  The conversation about “the future” is already shifting from the appropriation of someone’s video or song or photograph to Silicon Valley’s disruption of food, medicine, transportation, infrastructure, etc.  So, maybe if we fix (meaning strengthen) copyright enforcement online, that policy process will provide some clues as to how we might avoid careening into a state of technological feudalism.  

*For the purpose of this discussion, the copyright status of “Carol of the Bells” is irrelevant. 

Also see Rick Sanders’s post.


Busy Copyright Week Update

Though most people can be forgiven for missing it, two Supreme Court Decisions and a District Court granting a motion for summary judgment made a fair bit of copyright news this week.  In a pair of unanimous decisions the Supreme Court settled two statutory disputes relevant to a rightsholders’ ability to enforce his copyrights.  And pursuant to findings at the Ninth Circuit Court of Appeals, the District Court for the Central District of California granted a motion for summary judgment against VidAngel for its infringement of major Hollywood motion pictures.

“Registration” Means USCO Approval 

In Fourth Estate Public Benefit Corp. v. Wall-Street.com, Justice Ginsburg wrote the opinion holding that there is no way for the Court to read the copyright statute §411(a) other than to mean that the Copyright Office must grant Registration of a work before a rightsholder may litigate to remedy an alleged infringement.  

This decision resolves a court split over the issue, with the counter argument contending that filing the application is tantamount to “registration” and that a rightsholder should be allowed to proceed with legal action while the USCO is processing the application. Ginsburg and the other eight Justices found that reading of the statute unpersuasive, but the opinion also recognizes the practical challenge faced by rightsholders given that it takes an average six to seven months to receive a Certificate of Registration.  

This is especially acute in a time when online infringement may be almost instantaneous, and it is not impossible that there may be some legislative response to address these issues, not the least of which would be increasing resources for the USCO.  That said, the House Judiciary Committee does seem a little busy right now.  (See further discussion here.)

“Full Costs” Means Less Full Than Some Hoped

From the opposite ideological end of the bench, Justice Kavanaugh wrote the opinion in Rimini Street v. Oracle USA, another unanimous decision settling yet another statutory interpretation, this time §505 pertaining to the meaning of the term “full costs.” At issue was the question as to whether recoverable legal costs under the copyright statute may extend beyond the six categories of “taxable” costs that a court may award to a litigant in a copyright case. 

After Oracle prevailed in its copyright infringement suit against Rimini Street, it sought $12.8 million to recover its costs for expert witnesses, jury consulting, and e-discovery, which are not enumerated under Title 28 federal statutes pertaining to the types of costs a claimant may recover.  For context, I recommend Kevin Madigan’s analysis posted at the Center for the Protection of Intellectual Property, in which he contends that this decision is an incomplete reading and, as a practical matter, may disadvantage defendants as well as complainants in copyright cases. 

VidAngel’s Flight Seems All But Over

Finally, in the major motion picture studios’ case against VidAngel, a California District Court, finding no triable issues of fact, granted the studios’ motion for summary judgment this week.  As described in posts here and here, VidAngel is the VOD service that provided unlicensed streams of major motion pictures with options to “filter” out the naughty bits—sex, swearing, blasphemy, etc.—its base of customers preferred not to see or hear.  

Although filtering is permitted by law with devices designed for that purpose to be used in one’s own home, VidAngel endeavored to construct a convoluted business model in order to contend that its process of copying, filtering, and streaming films to customers for what amounted to rental fees was nothing more than an extension of the individual consumer’s right to filter.  All of the sanctified streamer’s defenses failed, and the company is held to have infringed the studios’ exclusive rights of reproduction and public performance as well as violated the anti-circumvention provisions under §1201 of the DMCA for decrypting DVD and Blu-Ray disks in order to create the files necessary for its service.

I may write a more extensive post about the outcome in VidAngel, which is an instructive case on a number of levels, but one that sticks out at the moment is the company’s attempt to assert fair use in defense of its circumventing DRM pursuant to the DMCA.  As the District Court notes, there is no fair use defense for violating §1201, though one could easily make this mistake based on the confusion and debate surrounding this statute.  

The distinction is that the Copyright Office has granted exemptions from the provisions of this section of the DMCA for specific uses (e.g. education, commentary, research) that are likely to be fair uses.  This is not the same thing as asserting a fair use defense for circumventing DRM for a purpose not already exempted by the USCO.  And VidAngel’s purpose in making entire motion pictures available (minus a bit of skin and a few curse words) does not come anywhere close to being considered for such an exemption.