Brammer v.Violent Hues Productions LLC: Copyright of photographs

I often start blog posts, save them, and then never return to finish them.  I suspect that I'm not the only person who does this.  Occasionally I look at my draft blog posts and wonder if any are worth completing.  This one, yes, because it is a good case to remember.  I particularly like that the Appellate Court when through the four factors of Fair Use in detail.

In June 2018, the Eastern District of Virginia, in the case of Brammer v. Violent Hues Productions, LLC, decided that photographs were facts and could not be copyrighted. As you can imagine, people's reaction to this was swift! How can a photograph be just a factual representation? Ask any professional photographer - and many amateurs - and they will tell of the work and creativity involved.  

Thankfully, an appeal was filed and the Fourth Circuit reversed the lower court decision.  The court's decision goes through the four factors of Fair Use and then states:

After examining the four factors, we conclude that none weighs in favor of Violent Hues. Considering these factors together, it is clear that the copying here fails the “ultimate test” of fair use: Violent Hues’ online display of Brammer’s Photo does not serve the interest of copyright law.

Later in the conclusion, the court states:

We reach our conclusion with the recognition that the Internet has made copying as easy as a few clicks of a button and that much of this copying serves copyright’s objectives. Many social media platforms like Twitter, Facebook, and Instagram are specifically designed for the participatory “sharing” — or copying — of content. We express no opinion as to whether such sharing constitutes fair use. We note, however,that Violent Hues’ use is not of this kind.

Violent Hues did not comment on the Photo, promote the Photo, “remix” the Photo, or otherwise engage with the Photo in a way that might stimulate new insights.

I've listed several resources below.  If you want to read something that is "brief" to start with, I would suggest the Gates article, which was written after the appellate decision.

Resources

• Stephen Carlisle. (June 21, 2018) Court Rules Photographs are “Factual Depictions;” Copying Them Is Fair Use.
• New York Intellectual Property Law Association. (October 29, 2018 ) BRIEF FOR AMICUS CURIAE NEW YORK INTELLECTUAL PROPERTY LAW ASSOCIATION IN SUPPORT OF NEITHER PARTY.
• Kirland & Ellis, LLP. (November 19, 2018) Brief for Appellee [Violent Hues Productions, LLC]
• Justia. (March 19, 2019) Brammer v. Violent Hues Productions, LLC, No. 18-1763 (4th Cir. 2019)
• Stanford University Libraries. (April 26, 2019 ) Brammer v. Violent Hues Productions, LLC
• Sara Gates. (May 6, 2019) Fourth Circuit Rules in Favor of Stock Photographer, Overturning Widely Discussed Fair Use Decision.