Brammer v. Violent Hues Prods., LLC, No. 1-17-cv-01009, 2018
BL 206017 (E.D. Va.
June 11, 2018)
Brammer took a time-lapse photo of the Adams Morgan
neighborhood of Washington, D.C., at night, then posted it on image-sharing
websites as well as his personal website. Violet Hues created a website
intended to be used as a reference guide providing information about the local
area for filmmakers and other attendees of a festival it ran and used a cropped
version of Brammer’s photo on its website. Violent Hues removed the photo after
receiving a C&D.
Brammer sued for copyright infringement and for removal and
alteration of CMI under 17 U.S.C. § 1202, though he abandoned the latter claim.
The court found that the use was fair. First, the use was transformative in
function and purpose: Brammer’s purpose was promotional and expressive, while
Violent Hues’ purpose was informational. The use was also noncommercial,
because it wasn’t done to advertise a product or generate revenue. It was also
in good faith: Violent Hues’ owner found the photo online “and saw no
indication that it was copyrighted.”
Nature of the work: “[I]f the disputed use of the
copyrighted work ‘is not related to its mode of expression but rather to its
historical facts,’ then the creative nature of the work is mitigated.” The photo had creative elements, but was also
“a factual depiction of a real-world location,” and was used purely for its
factual content. And the work was previously published, favoring fair use.
Amount and substantiality of the portion used: it was
cropped about in half, which was no more of the photo than was necessary to
convey the photo’s factual content and serve Violent Hues’ informational
purpose, also weighing in favor of fair use.
Market effect: there was no evidence of an effect on the
potential market. Brammer was compensated for the photo six times, including
three physical print sales and three usage licenses; at least two sales
occurred after the challenged use began. Brammer testified that he currently made no effort
to market the photo. A transformative and non-commercial use is unlikely to
cause market harm; Violent Hues didn’t sell copies of the photo or generate any
revenue from it. It didn’t provide a market substitute for the photo,
especially since it only used approximately half of the photo.
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