A copyright ruling against a photographer whose work was re-used has been criticized as a "very poor decision," based on "a faulty understanding of the fair use doctrine," by copyright lawyer Bert Krages.

The widely-reported 'Brammer v. Violent Hues LLC' case in the Eastern District of Virginia appeared to accept that the use of a crop of a photograph without permission as fair use. However, while Krages questioned the decision, he also stressed that "the decision does not serve as precedent in other cases," though he thinks "it's likely that other defendents in copyright cases will cite to the case in the hopes of getting a favorable decision."

A faulty understanding of the fair use doctrine

The legal matter began in 2017 after photographer Russell Brammer filed a complaint against Violent Hues Productions, LLC, for using one of his images on its website without first receiving permission. The image had been taken in 2011 and was uploaded to Flickr with an "All Rights Reserved" copyright notice.

Violent Hues removed the image upon being contacted by Brammer, but the photographer sued, both for copyright infringement and for removing copyright information from the image. The court dismissed the copyright removal claim but then made a controversial ruling that Violent Hues' use was covered by the 'fair use' exemption from copyright protection.

'Fair use' in US copyright law includes the consideration of four basic tests:

  • The purpose and character of the use, including whether such use is of a commercial nature. . .
  • The nature of the copyrighted work
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  • The effect of the use upon the potential market for or value of the copyrighted work.

The court decision works through each of these tests but Attorney at Law Krages, who has no connection to the case said "The court seems to apply the factors in a way that excuses the infringement as opposed to applying them in a way to determine if the societal interest in fair use is served."

In particular, he expressed surprise at the court's assessment of the character of the usage. The ruling states that Brammer's work was 'promotional and expressive,' whereas Violent Hues' was 'informational,' and that the usage was, therefore 'transformative.'

The downloading of an image off of a website to use on another website is hardly a new or unexpected use.

"The District Court seems to have failed to recognize that a finding of transformative use requires that the source work has been used in a completely new or unexpected way," he said. In particular, he questioned the case cited in the ruling: "Although the court cites to a Fourth Circuit decision that held that the use of papers written by high school students in a database intended to detect plagiarism was "transformative" because the purpose was different, In this case, the downloading of an image off of a website to use on another website is hardly a new or unexpected use."

The ruling goes on to suggest the nature of the copyrighted work was a factual representation of the world, even though it contained creative elements, and therefore decided in favor of fair use on the second test. It dismissed the third test by saying that Violent Hues had cropped the image so that only the amount "necessary to convey the photo's factual content" was used. It then concluded that Brammer had managed to sell the image after Violent Hues had used it, and hence the use hadn't undermined the work's value.

In my opinion, this was nothing more than an unfair misappropriation of an artist's talents

Krages disagrees: "The four fair use factors are neither exclusive nor are they to be given equal weight. The court seems to apply the factors in a way that excuses the infringement as opposed to applying them in a way to determine if the societal interest in fair use is served. Violent Hues purpose for using the image was to make its website look better, and the usage did nothing to promote public interests such as commentary, news reporting, and scholarship. Violent Hues did not use the image to comment on the image as art, to report that someone had made an interesting image, or in connection with a scholarly work on photography. The image obviously had value or Violent Hues would not have wanted to use it. In my opinion, this was nothing more than an unfair misappropriation of an artist's talents."

Ultimately, though, Krages has reassuring words: "Although it is likely that other defendants in copyright cases will cite to the case in the hopes of getting a favorable decision, hopefully it will not encourage other parties to engage in infringement. In any case, it should not prevent similarly-situated plaintiffs in other cases from receiving just compensation."

The court's ruling in the case can be found in its entirety here.

A copyright ruling against a photographer whose work was re-used has been criticized as a "very poor decision," based on "a faulty understanding of the fair use doctrine," by copyright lawyer Bert Krages.

The widely-reported 'Brammer v. Violent Hues LLC' case in the Eastern District of Virginia appeared to accept that the use of a crop of a photograph without permission as fair use. However, while Krages questioned the decision, he also stressed that "the decision does not serve as precedent in other cases," though he thinks "it's likely that other defendents in copyright cases will cite to the case in the hopes of getting a favorable decision."

A faulty understanding of the fair use doctrine

The legal matter began in 2017 after photographer Russell Brammer filed a complaint against Violent Hues Productions, LLC, for using one of his images on its website without first receiving permission. The image had been taken in 2011 and was uploaded to Flickr with an "All Rights Reserved" copyright notice.

Violent Hues removed the image upon being contacted by Brammer, but the photographer sued, both for copyright infringement and for removing copyright information from the image. The court dismissed the copyright removal claim but then made a controversial ruling that Violent Hues' use was covered by the 'fair use' exemption from copyright protection.

'Fair use' in US copyright law includes the consideration of four basic tests:

  • The purpose and character of the use, including whether such use is of a commercial nature. . .
  • The nature of the copyrighted work
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  • The effect of the use upon the potential market for or value of the copyrighted work.

The court decision works through each of these tests but Attorney at Law Krages said "The court seems to apply the factors in a way that excuses the infringement as opposed to applying them in a way to determine if the societal interest in fair use is served."

In particular, he expressed surprise at the court's assessment of the character of the usage. The ruling states that Brammer's work was 'promotional and expressive,' whereas Violent Hues' was 'informational,' and that the usage was, therefore 'transformative.'

The downloading of an image off of a website to use on another website is hardly a new or unexpected use.

"The District Court seems to have failed to recognize that a finding of transformative use requires that the source work has been used in a completely new or unexpected way," he says. In particular, he questioned the case cited in the ruling: "Although the court cites to a Fourth Circuit decision that held that the use of papers written by high school students in a database intended to detect plagiarism was "transformative" because the purpose was different, In this case, the downloading of an image off of a website to use on another website is hardly a new or unexpected use."

The ruling goes on to suggest the nature of the copyrighted work was a factual representation of the world, even though it contained creative elements, and therefore decided in favor of fair use on the second test. It dismissed the third test by saying that Violent Hues had cropped the image so that only the amount "necessary to convey the photo's factual content" was used. It then concluded that Brammer had managed to sell the image after Violent Hues had used it, and hence the use hadn't undermined the work's value.

In my opinion, this was nothing more than an unfair misappropriation of an artist's talents

Krages disagrees: "The four fair use factors are neither exclusive nor are they to be given equal weight. The court seems to apply the factors in a way that excuses the infringement as opposed to applying them in a way to determine if the societal interest in fair use is served. Violent Hues purpose for using the image was to make its website look better, and the usage did nothing to promote public interests such as commentary, news reporting, and scholarship. Violent Hues did not use the image to comment on the image as art, to report that someone had made an interesting image, or in connection with a scholarly work on photography. The image obviously had value or Violent Hues would not have wanted to use it. In my opinion, this was nothing more than an unfair misappropriation of an artist's talents."

Ultimately, though, Krages has reassuring words: "Although it is likely that other defendants in copyright cases will cite to the case in the hopes of getting a favorable decision, hopefully it will not encourage other parties to engage in infringement. In any case, it should not prevent similarly-situated plaintiffs in other cases from receiving just compensation."

The court's ruling in the case can be found in its entirety here.