Is Fair Use Still Fair?

Photographers should always include copyright notice on their works to avoid copyright infringement

A recent decision from the Eastern District of Virginia took an expansive view on the fair use defense to copyright infringement that calls into question the scope of copyright protection for photographers.

In Brammer v. Violent Hues Productions, LLC, a photographer sued a festival organizer for copyright infringement based on using the photographer’s time-lapse photo of a Washington, D.C. neighborhood in its website. The organizer claimed that it found the picture online and did not see any indication that someone claimed copyright in the picture and, therefore, believed that it was making use of a publically available photograph. The organizer added the picture to its website, which provides information about lodging, transportation, and things to do in the D.C. area during the festival.

The organizer claimed that its use of the picture was fair use under copyright law and the court analyzed the four relevant factors:

  1. The purpose and character of the use, including whether the use is commercial;
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the portion used related to the original work; and
  4. The effect of the use on the potential market for or value of the original work.

The court found that these factors weighed in favor of finding that the organizer’s use was fair.  Most notably, the court found that the organizer’s use was non-commercial and merely informative. This finding is questionable concerning that the purpose of the website was to encourage people to attend the film festival.

Additionally, the court found that the use was in good faith because the organizer testified that when it found the image online, it was not accompanied by any indication that someone claimed copyright in the image. The court further found that the effect on the market or value of the original work was not harmed because sales of the work continued after the infringement.

Finally, the court’s findings concerning the nature of the copyrighted work call into question what photographers can even claim is protected under copyright. The court found that while the picture contained some creative elements, the subject of the picture, the Adams Morgan neighborhood, is a real-world location and the picture is merely a factual depiction of the neighborhood. The court weighed this in favor of finding fair use despite the fact that any landscape photograph, or other depiction of a real-world location that has not been artificially staged by a photographer, would likewise receive limited protection, a result not contemplated by the Copyright Act.

The photographer has filed a notice of appeal and is seeking review of the trial court’s order with the Fourth Circuit Court of Appeals, with jurisdiction over federal courts sitting in Maryland, Virginia, West Virginia, North Carolina, and South Carolina. Whether the appellate court ultimately affirms or denies the trial court’s order, the Brammer decision provides a cautionary tale for photographers.

One takeaway is that any authorized publication of a work should be accompanied by an indication that the image is registered (if it has been) and, in any case, at least that the artist claims copyright in the image. Use of the copyright notice (the copyright symbol, the date the work was completed or first published and the author’s name) should be included. Another lesson to learn from this decision is that photographers should post a clear schedule of fees for licensing their works in which they claim copyright so that it is clear that an unauthorized user has obtained something of value for free, to further cut against a finding that such use was fair. Finally, when a photographer seeks registration of a copyright in his or her photographs, extra care should be taken to ensure that the application identifies with particularity all of the photographer’s decisions in framing and composing the work.


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