Online Use of Copyrighted Photograph Found "Fair" Despite Its Commercial Purposes

Fair use can serve as a defense to copyright infringement even when the purpose was commercial.


Copyright law protects creators of original works, including photographers, from those who try to infringe their creations. The most common defense to a claim of copyright infringement is fair use. In the context of photography, fair use is normally limited to situations when a photo is used for purposes of commentary or criticism by the infringer, and not used for commercial (in other words, profitable) purposes. However, a recent decision from the U.S. District Court for the Eastern District of Virginia in Brammer v. Violent Hues Productions, LLC (E.D.N.Y., 2018), allowed the defense of fair use to prevail despite a commercial use of the infringing photograph.

Relevant Facts and Background to Brammer Case

The plaintiff in this lawsuit is a photographer named Russell Brammer. He sued Violent Hues, a company that organizes the annual Northern Virginia Film Festival, claiming that it had infringed his November 2011 photograph of the Adams Morgan neighborhood of Washington, DC. (Brammer received a copyright registration over the photograph from the U.S. Copyright Office in July 2017).

Violent Hues had created a website for its festival in 2014, which was aimed at visitors and participants. In 2016, the company's website incorporated a cropped version of Brammer's photograph that he had posted on several public websites, as a background image. Soon after it was discovered, Brammer's attorney sent Violent Hues a cease-and-desist letter, and the photograph was quickly removed from the site.

Nevertheless, Brammer sued for copyright infringement under 17 U.S.C. § 504(b) and for removal of copyright management information through Violent Hues's alteration and cropping of the photo pursuant to 17 U.S.C. § 1202.

The Federal Court's Decision

In his memorandum opinion dated June 11, 2018, Judge Claude M. Hilton agreed with the defendant, Violent Hues, that its infringement qualified as fair use, and thus was not actionable.

What is fair use? Copyright law bestows certain exclusive rights on creators. For example, under 17 U.S. Code § 106, copyright holders have the exclusive right to reproduce their work, create derivative works, and perform the work publicly.

In this context, that means Brammer had the exclusive ability to post his photo online, as well as the exclusive ability to make derivative works from it (such as a cropped version of the image). But these exclusive rights are not absolute. The doctrine of fair use creates important exceptions. The statute, 17 U.S.C. § 107, allows copyrighted material to be used "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research," none of which are considered an infringement of copyright.

In considering whether copyright infringement is protected by fair use, a court will weigh four factors: (1) the purpose and character of the use, including whether such use is of a commercial nature; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

Judge Hilton analyzed each of these factors. As to the first factor, the court found that Violent Hues's use of the photograph was "transformative in function and purpose" because its purpose in using the photograph was "informational... to provide festival attendees with information regarding the local area."

On the second factor, the nature of the copyrighted work was not highly specific or original, but rather was "a factual depiction of a real-world location: the Adams Morgan neighborhood in Washington, DC." Violent Hues used the photo "purely for its factual content, to provide festival attendees a depiction" of the neighborhood. This factor weighs in favor of fair use.

On the third factor, the court noted that Violent Hues edited the photograph "by cropping approximately half of the original photo from the version it used on its website... [using] no more of the photo than was necessary to convey the photo's factual content and effectuate Violent Hues' informational purpose." Thus, this too weighed in favor of fair use.

Finally, on the fourth factor, the court found that no evidence that Violent Hues's use of the photo "had any effect" on the potential market for it. In other words, Brammer would still be able to market and sell the photo without issue.

For all of these reasons, the court found fair use and granted summary judgment for Violent Hues. The court also noted the defendant's "good faith" in removing the image as soon as it was notified about the infringement.

The decision is controversial, however, particularly among photographers, who tend to support strong copyright protections for their works. The fact that the court allowed a defendant to use a protected image without liability will surely be the subject of future debate, and perhaps clarification by the U.S. Court of Appeals for the Fourth Circuit.

Effective Date: June 11, 2018