UPDATE: Appeals court holds copying images from the internet is not a fair use. BRAMMER v. VIOLENT HUES

A copyright is a set of exclusive granted to an artist when they create a new work of expression. Literature, photography, sculpture, and music are all examples art which is protected by copyright law. A copyright grants its owner the exclusive right to reproduce, distribute, display, perform, transmit and create derivative works based on the original. If someone other than the copyright owner exercises one of these exclusive rights that can be considered copyright infringement. A copyright owner can stop copyright infringement by filing a lawsuit which requests an injunction and get monetary damages for copyright infringement which has occurred.

Despite the board rights granted to a copyright owner, there are some limits to the control a copyright owner can exert. Copyright is intended to give artists the ability to make a living off their hard work, but many artists are inspired by the work of their predecessors. To balance the rights of a copyright holder with the rights of other artists that might be inspired by a copyrighted work, copyright law allows a certain amount of borrowing. The general name for this allowed borrowing is called fair use. A fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Fair use is a defense to copyright infringement, which means that the use of the copyrighted work does not actually constitute copyright infringement.

A key point to a fair use determination is whether or not a use is transformative. United States courts have held that merely cropping or making minor adjustments to an image are not transformative enough to qualify as a fair use. However, there is no bright line rule to determine whether a use is transformative or a fair use. When a court is presented with a fair use defense to copyright infringement, four factors are considered in making a fair use determination. Those factors are: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion taken, and (4) the effect of the use upon the potential market. Because the fair use factors are open to interpretation, it is beneficial to study how courts have ruled in previous cases to predict how they will rule in future cases.

A case which deals with a fair use defense is RUSSELL BRAMMER, v. VIOLENT HUES PRODUCTIONS, LLC, 18-1763 (4th Cir 2019). The plaintiff in this case is a photographer who took a picture of a city street in from a rooftop in Washington, D.C. The color-saturated Photo depicts a busy street during the evening in the Adams Morgan neighborhood, with the vehicle traffic rendered as red and white light trails. The plaintiff licenses his photographs and various stock image websites.

The defendant discovered the plaintiff’s photograph through an internet image search, cropped the photograph and reproduced it on the defendant’s website. When the plaintiff discovered the defendant’s actions he demanded compensation. The defendant removed the photograph from his website but did not compensate the plaintiff. The plaintiff sued for copyright infringement, the defendant claimed it was a fair use. The district court sided with the defendant and held that the defendant’s use was a fair use. The plaintiff appealed to the Court of Appeals for the Fourth Circuit.

The Fourth Circuit reversed the district court’s finding of fair use and remanded the case. The Fourth Circuit held that the fair use defense presents a mixed question of law and fact, which requires the district court’s legal conclusions to be reviewed de novo for a finding of clear error on the facts. Fair use is not designed to protect lazy appropriators. Its goal instead is to facilitate a class of uses that would not be possible if users always had to negotiate with copyright owners. The “ultimate test” of fair use is whether the progress of human thought would be better served by allowing the use than by preventing it. The Fourth Circuit found that the defendant’s cropping of the image was not literally transformative and that the use of the photograph was not contextually transformative. An example of a contextually transformative use would be a technological use or a documentary use, that would require the entire copyrighted work to be copied unchanged, but would change the nature of how the copyrighted work was being used.

The Fourth Circuit then analyzed each of the four use factors in turn and determined that the evidence weighed in favor of the plaintiff. The defendant was using the plaintiff’s website for commercial purposes, to promote the defendant’s business. The plaintiff’s photograph was creative. The defendant’s use took substantially all of the plaintiff’s photograph. And, the defendant’s use negatively impacted the market for the plaintiff’s photograph. After weighing each of these factors the Fourth Circuit held that none of the factors favored a finding of fair use.

If you have questions or comments for the authors of this blog please email us at: admin@uspatentlaw.cn