Your venerable and relatively trustworthy copyright correspondent takes his eye off the prize and abdicates his weekly beat for just a few scant weeks to tend to non-legal matters of the heart and just look what happens: rights for and to and inherent in an entire universe of creative media is thrown asunder, rendered void ab initio by a federal judge.
And what a decision it is that does the damage. The case, Brammer v. Violent Hues Productions, was a run-of-the-mill copyright dispute between a photographer and a production company that used his work without permission as part of an event advertisement on its website. The work at issue was Russell Brammer’s “time-lapse depiction of the Adams Morgan neighborhood of Washington, D.C., at night,” which he had previously licensed to third parties and sold as an art print.
The only thing notable about the case at the outset was that the defendant, Violent Hues, was a for-profit film production company that held an annual film festival. Generally, such entities put great stock in creative content and are diligent in ensuring that they gain consent to use the creative material of other artists. That the company, which was literally in the business of promoting festivals that celebrated the work of artists, purloined a fellow artist’s work without even notifying him and then exploited it to advertise its for-profit event drips with irony and is generally a bad look.
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Even worse, Violent Hues vigorously attacked the photographer’s case, retaining one of Virginia’s most expensive firms to file a motion for summary judgment arguing that the disputed use of Brammer’s work was “fair.” This filing itself probably seemed like an act of almost unbridled hubris at the time, given Violent Hues’ admission that it had basically found Brammer’s work on the internet, copied it, and then published it in a commercial context without consent. But, in a head-scratchingly misguided decision, the court took the bait, granting the motion, tossing Brammer out of court, and along the way conducting a fair-use analysis that if widely adopted would eviscerate the photographer’s copyrights to a grand degree.
The decision seems to almost go out of its way to art-shame Brammer, appearing to question why he is even in court given that his work was little more than a “factual depiction of a real-world location.” Of course, decisions going back to the beginning of time (in a jurisprudential sense), recognize that even factual depictions of real-world locations are covered by copyright protection.
The Supreme Court reminded us of as much back in 1903, in Bleistein v. Donaldson Lithographing Coit, when it reversed a lower court’s decision holding that “chromolithographs were not within the protection of the copyright law.” Chromolithographs are some sort of old-timey picture, as far as I can tell.
The images at issue in Bleistein include one that I have always wanted to see, as it depicts the “Stirk family, performing on bicycles,” but the opinion also makes clear that a photograph is copyrightable because it “is the personal reaction of an individual upon nature.” And “[p]ersonality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible, which is one man’s alone.”
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While Brammer’s work may not have been a classic work of baroque complexity like the feature film entitled Mr. Deeds, it was certainly creative enough to meet this “modest grade” and withstand summary judgment. As the Supreme Court opined, “[t[hat these pictures had their worth and their success is sufficiently shown by the desire to reproduce them without regard to the plaintiffs’ rights.” Here, Violent Hues’ certainly found Brammer’s work to be creative and otherwise of value, selecting his work amongst all competing images.
The court spent seven pages finding otherwise, noting that the, in its opinion, low level of creativity in Brammer’s work militated in favor of finding fair use. The other fair use factors are similarly and comically misapplied. The court found Violent Hues’ use “transformational” because Brammer’s use of his photograph — his licensing and print sales — was “promotional,” but that Violent Hues’ use of Brammer’s photograph, which was literally to promote one of its events was not “promotional” but was instead “informational” because it informed viewers about the festival’s locale. This makes little sense.
The court then draws a distinction where none exists — between the advertising of events and the advertising of products — and concludes that only the latter is a commercial use, while also noting that Violent Hues’ use of Brammer’s photograph to advertise the festival, for which attendees bought tickets and artists paid a fee to submit their work for consideration, was not a use that sought to “generate revenue.” Suffice it to say, no authority is cited for any of these findings.
The court also cites Violent Hues’ “good faith” (not a fair-use factor) in its fair-use analysis, and grounds this “good faith” finding in the fact that Violent Hues copied the photograph from an online source that allegedly had no notice that the photograph was copyrighted. (Copyright notices have not been required since 1976, and there was evidence that there actually was such a notice.) A company — and one that traffics in the arts, no less — arguing that its copying of a photograph from the internet is good faith would be hilarious if it wasn’t cited by the court to deny a photographer his rights in the work.
Brammer has filed a notice of appeal challenging this decision, which I will go out on a limb and predict will be overturned. To be sure, the court here ran afoul of and trampled all over the very direct and elegantly written guidance that the Bleistein court bestowed upon us back at the turn of the century: “it would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.” The court’s decision here perfectly illustrates why said undertaking is so very dangerous.
Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at [email protected], and you can follow his law firm on Instagram: @veniceartlaw.