use of about half a publicly available photo was fair use

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.

 

here's a blurry screengrab: the accused use is the middle

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.