The Fourth Circuit Holds Copying from Image-Sharing Website Not Fair Use

Thursday, May 9, 2019

The Court of Appeal for the Fourth Circuit provided a reminder of the potential dangers of downloading photographs and other images from image-sharing websites in Brammer v. Violent Hues Prods., LLC, --- F.3d ---, 2019 WL 1867833, 18-1763 (4th Cir. Apr. 26, 2019).  Mr. Brammer, a commercial photographer, brought a copyright infringement action after learning that one of his photographs depicting the Adams Morgan neighborhood of Washington, D.C. at night had been used without permission by the defendant, Violent Hues Productions, LLC., a film production company.  The owner of Violent Hues downloaded the photograph (even though the photograph was accompanied by the notice “© All rights reserved”) and posted it online on a webpage belonging to Violent Hues highlighting tourism attractions around the Washington, D.C. area.  The district court granted Violent Hues’ motion for summary judgment based on the “fair use” defense, which allows unlicensed use of copyrighted materials “to build freely upon the ideas and information conveyed by a work.”  The four elements to be considered when assessing the fair use defense are set forth in 17 U.S.C. § 107.  One of the elements is the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes, and another is the amount and substantiality of the portion used in relation to the copyrighted work as a whole.  The Fourth Circuit reversed the district court, finding that Violent Hues’s use of a substantial portion (i.e., “roughly half”) of the photograph to indirectly promote a for-profit film festival was of a commercial nature and that the fair use defense did not apply.  The case  makes clear that a commercial motivation will likely result in the defense not being applicable.