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Brammer v. Violent Hues Prods., LLC

United States Court of Appeals for the Fourth Circuit

March 19, 2019, Argued; April 26, 2019, Decided

No. 18-1763

Opinion

 [*260]  DIANA GRIBBON MOTZ, Circuit Judge:

Russell Brammer, a commercial photographer, brought this copyright infringement action after learning that Violent Hues Productions, LLC, had made an unlicensed use of one of his photographs on its website. The district court granted summary judgment to Violent Hues, ruling  [*261]  that this unauthorized display constituted "fair use" under the Copyright Act, 17 U.S.C. § 107. For the reasons that follow, we reverse and remand for further proceedings consistent with this opinion.

Brammer licenses his work as stock imagery.1 On November 19, 2011, Brammer shot the photograph "Adams Morgan at Night" ("Photo") 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. See Appendix A. After processing the Photo, Brammer published a digital copy on his own website. Brammer also uploaded the Photo [**4]  to the image-sharing website Flickr, including the phrase "© All rights reserved" beneath it. Appendix A. In the past, Brammer has sold physical prints of the Photo — for $200 to $300 — and licensed it for online use twice — once for $1,250, and once for $750.

In 2016, Fernando Mico, the owner of the Violent Hues film production company, posted the Photo on novafilmfest.com, a website belonging to the company. That website promoted the Northern Virginia International Film and Music Festival, a revenue-generating event. The website contained a page titled "Plan Your Visit," which highlighted various tourism attractions around the Washington metropolitan area. Mico posted a cropped version of Brammer's Photo above the caption "Adams Morgan, DC," without any attribution or other commentary. See Appendix B.

Mico believes that he found the Photo "through a Google Images search, which led [him] to the website Flickr." Mico maintains that he did not see any "indication on the Photo itself or the Flickr website that the Photo was copyrighted," and so believed it to be publicly available. After downloading the Photo, Mico cropped [**5]  out the Photo's negative space "for stylistic reasons" before putting it on novafilmfest.com.

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922 F.3d 255 *; 2019 U.S. App. LEXIS 12572 **; Copy. L. Rep. (CCH) P31,452

RUSSELL BRAMMER, Plaintiff - Appellant, v. VIOLENT HUES PRODUCTIONS, LLC, Fernando Mico, Owner, Defendant - Appellee.AMERICAN PHOTOGRAPHIC ARTISTS; AMERICAN SOCIETY OF MEDIA PHOTOGRAPHERS, INC.; ARTS & ENTERTAINMENT ADVOCACY CLINIC AT GEORGE MASON UNIVERSITY ANTONIN SCALIA LAW SCHOOL; COPYRIGHT ALLIANCE; DIGITAL JUSTICE FOUNDATION; PACA, DIGITAL MEDIA LICENSING ASSOCIATION, INC.; VOLUNTEER LAWYERS FOR THE ARTS, INC.; NEW YORK INTELLECTUAL PROPERTY LAW ASSOCIATION; NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION; GRAPHIC ARTISTS GUILD, INC., Amici Supporting Appellant.

Prior History:  [**1] Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. (1:17-cv-01009-CMH-IDD). Claude M. Hilton, Senior District Judge.

Brammer v. Violent Hues Prods., LLC, 2018 U.S. Dist. LEXIS 98003 (E.D. Va., June 11, 2018)

Disposition: REVERSED AND REMANDED.

CORE TERMS

fair use, transformative, weighs, website, photographs, copyrighted work, licensed, copying, district court, stock, good faith, secondary use, quotation, user, infringement, secondary, rights, marks, alteration, creative, purposes, appears, factors, thick, photography, assessing, customary, online, film

Civil Procedure, Appeals, Standards of Review, Clearly Erroneous Review, Copyright Law, Defenses, Fair Use, Fair Use Determination, De Novo Review, Reviewability of Lower Court Decisions, Preservation for Review, Civil Infringement Actions, Fair Use, Fair Use Determination, Factors