922 F.3d 255
4th Cir.2019Background
- Plaintiff Russell Brammer is a commercial/stock photographer who shot and published the color-saturated photograph “Adams Morgan at Night,” which he has licensed commercially in the past.
- Defendant Violent Hues (owner: Fernando Mico) copied and cropped roughly half of the Photo from Flickr and posted it without attribution on novafilmfest.com as an illustration in a “Plan Your Visit” tourism page promoting a for‑profit film festival.
- Brammer demanded compensation; Violent Hues removed the image but paid nothing. Brammer sued for copyright infringement.
- At summary judgment the district court found Violent Hues’ use was fair use; Brammer appealed.
- The Fourth Circuit reversed, holding none of the four statutory fair‑use factors favored Violent Hues and that the display was not transformative commercial fair use.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Violent Hues’ unlicensed use of Brammer’s photo on a commercial festival website is fair use under 17 U.S.C. § 107 | Brammer: use is not fair — it was non‑transformative, commercial, took the heart of the work, and harmed the licensing market | Violent Hues: use was transformative because it provided informational/contextual value (tourism guide); acted in good faith and was non‑exploitative | Court: Held not fair use — non‑transformative, commercial, substantial taking, and market harm weigh against fair use; good faith claim unpersuasive |
| Role of transformation/context in factor one | Brammer: context did not add new expression, meaning, or public benefit | Violent Hues: placing the image in a list of attractions imparted new informational function | Court: Placing the photo in a tourism context did not create a new function or message; cropping was minimal and not transformative |
| Relevance of defendant’s good faith | Brammer: lack of reasonable inquiry (Flickr caption showed ©) undermines good‑faith claim | Violent Hues: believed image was public and acted innocently; good faith should favor fair use | Court: Good faith is presumed; bad faith may weigh against fair use but good faith does not carry equivalent affirmative weight; here evidence at most of negligence, not innocence that helps defense |
| Market‑harm inquiry under factor four | Brammer: unauthorized use would supplant paid licenses; he produced evidence of prior licensing of the same photo for similar online use | Violent Hues: argued no market harm and cited subsequent sales after the use | Court: Presumed market harm where commercial, non‑transformative use duplicates expressive features; Brammer’s licensing history supports market‑harm finding; subsequent sales do not negate harm |
Key Cases Cited
- Campbell v. Acuff‑Rose Music, Inc., 510 U.S. 569 (1994) (sets forth the fair use factors and the transformation inquiry)
- Bouchat v. Baltimore Ravens Ltd. P’ship, 619 F.3d 301 (4th Cir. 2010) (standard of review for mixed question of law and fact; fair use framework applied)
- Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985) (bad faith relevance and the special weight of unpublished works)
- Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013) (focus on how a reasonable observer perceives transformation)
- A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630 (4th Cir. 2009) (total reproduction may be transformative when repurposed for a different technological function)
- Google Books (Authors Guild v. Google, Inc.), 804 F.3d 202 (2d Cir. 2015) (highly transformative technological uses and search/indexing functions)
- Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) (online image search as transformative technological use)
- Monge v. Maya Magazines, Inc., 688 F.3d 1164 (9th Cir. 2012) (minimal alterations to photographs often not transformative)