Fourth Circuit Fixes Fair Use

On April 26, the Fourth Circuit Court of Appeals reversed a controversial ruling that caused significant concerns for visual artists. Brammer v. Violent Hues Productions, LLC, No. 18-1763 (4th Cir. Apr. 26, 2019). The lower court ruled that a festival promoter’s unlicensed use of a copyrighted photograph on its website in connection with advertising the festival was permitted as “fair use.” More information concerning the trial court’s ruling is contained in our earlier article, Is Fair Use Still Fair, available here. After analyzing the statutory fair use factors, the lower court found that they weighed in favor of permitting the unlicensed use of the work. These factors are:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit/educational purposes;
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.

Several organizations filed briefs in support of the photographer on the appeal, including Volunteer Lawyers for the Arts, the American Society of Media Photographers, and the National Press Photographers Association. In a much-anticipated decision, the Fourth Circuit Court of Appeals reversed the trial court, finding that all of these factors actually weighed against fair use. The Fourth Circuit began its analysis by stating that the “ultimate test” that the court should consider in deciding whether the use was fair use, and thus should be permitted, is whether “the progress of human thought ‘would be better served by allowing the use than by preventing it.’ ” (citing Cariou v. Prince, 714 F.3d 694, 705 (2d Cir. 2013)).

As to the first factor, the court rejected the lower court’s analysis of the subjective intent of the original artist and the infringer. Instead, the court constrained its analysis to a side-by-side comparison of the two works. On this analysis, the court found that the promoter used the work for a commercial purpose without substantial transformation. In addition, the court rejected the promoter’s argument that its use was made in good faith, a factor to which the lower court cited in finding fair use. The Fourth Circuit clarified that good faith does not weigh in favor of fair use, rather, bad faith weighs heavily against fair use. The court found the use to be exploitative and weighing against fair use.

The second factor requires courts to consider how much protection is afforded to the original work stemming from the amount of creativity embodied in the work. The court found that, although the work depicted a real place, the photographer made substantial creative contributions to the image, including framing the picture and using shutter speeds and apertures to create a stylized image that cannot be seen in the real world. The court found that the image was entitled to substantial protection.

As to the last two factors, the court found that the promoter used the most expressive part of the work, which adversely affected the market for selling or licensing the original work. Like the other factors, the court found that these weighed against fair use as well.

The Fourth Circuit’s opinion rejected not only the conclusions reached by the lower court, but also the standards that the court applied. The opinion prevented a trial court decision that would have dramatically impaired copyright protections for visual artists and photographers from becoming the norm in the Fourth Circuit. This opinion also serves as a poignant reminder for website operators and content creators to make sure that they have any necessary rights before incorporating an image or other creative element into their work.

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