Russell Brammer v. Violent Hues Productions, LLC , 922 F.3d 255 ( 2019 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-1763
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.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Claude M. Hilton, Senior District Judge. (1:17-cv-01009-CMH-IDD)
Argued: March 19, 2019 Decided: April 26, 2019
Before MOTZ, KING, and THACKER, Circuit Judges.
Reversed and remanded by published opinion. Judge Motz wrote the opinion, in which
Judge King and Judge Thacker joined.
ARGUED: David Christopher Deal, LAW OFFICE OF DAVID C. DEAL PLC, Crozet,
Virginia; David Leichtman, LEICHTMAN LAW PLLC, New York, New York, for
Appellant. Thomas Patrick Weir, KIRKLAND & ELLIS, LLP, Washington, D.C., for
Appellee. ON BRIEF: Tatsuya Adachi, LEICHTMAN LAW PLLC, New York, New
York, for Appellant. Judson D. Brown, Paul J. Weeks, KIRKLAND & ELLIS, LLP,
Washington, D.C., for Appellee. Scott J. Sholder, Nancy E. Wolff, COWAN,
DEBAETS, ABRAHAMS & SHEPPARD, LLP, New York, New York, for Amicus
PACA, Digital Media Licensing Association, Inc. Jay Cohen, Darren W. Johnson,
Stephen B. Popernik, Matthew P. Merlo, Anne E. Simons, PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP, New York, New York; Kathryn E. Wagner, Amy A.
Lehman, VOLUNTEER LAWYERS FOR THE ARTS, INC., New York, New York, for
Amicus Volunteer Lawyers for the Arts, Inc. Peter G. Thurlow, New Yok Intellectual
Property Law Association, President, POLSINELLI PC, New York, New York; Martin
B. Schwimmer, Lauren B. Emerson, Robert M. Isackson, Second Vice President, Amicus
Brief Committee Board Liaison, New York Intellectual Property Law Association,
LEASON ELLIS LLP, White Plains, New York; Mitchell Stein, SULLIVAN &
WORCESTER LLP, New York, New York, for Amicus New York Intellectual Property
Law Association. Keith Kupferschmid, Terry Hart, COPYRIGHT ALLIANCE,
Washington, D.C.; Jacqueline C. Charlesworth, Michelle Choe, New York, New York,
Beth S. Brinkmann, Michael J. Gaffney, COVINGTON & BURLING LLP, Washington,
D.C., for Amicus Copyright Alliance. Thomas B. Maddrey, AMERICAN SOCIETY OF
MEDIA PHOTOGRAPHERS, INC., Dallas, Texas, for Amici American Society of
Media Photographers, Inc. and Graphic Artists Guild, Inc. Mickey H. Osterreicher,
General Counsel, Alicia Calzada, Deputy General Counsel, NATIONAL PRESS
PHOTOGRAPHERS ASSOCIATION, Athens, Georgia, for Amici American Society of
Media Photographers, Inc., National Press Photographers Association, Graphic Artists
Guild, Inc., and American Photographic Artists. Antigone Gabriella Peyton, David
Christopher Johnson, PROTORAE LAW PLLC, Tysons, Virginia, for Amicus Arts &
Entertainment Advocacy Clinic at George Mason University Antonin Scalia Law School.
Andrew Grimm, Omaha, Nebraska, Gregory Keenan, DIGITAL JUSTICE
FOUNDATION, Floral Park, New York, for Amicus Digital Justice Foundation.
2
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 judgement to Violent Hues, ruling 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.
I.
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 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.
1
Stock images are “photographs that are fungible in terms of their use in contexts
such as magazines, websites, or brochures” and are typically licensed for illustrative or
aesthetic purposes. Eric E. Johnson, The Economics and Sociality of Sharing Intellectual
Property Rights, 94 B.U.L. Rev. 1935, 1962 (2014).
3
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 out the Photo’s
negative space “for stylistic reasons” before putting it on novafilmfest.com.
After Brammer discovered this unauthorized use, his counsel sent a letter to
Violent Hues requesting compensation for the use. In response, Violent Hues removed
the Photo from its website, but did not compensate Brammer.
Brammer then initiated this copyright infringement action against Violent Hues,
seeking damages and attorney’s fees. In response, Violent Hues asserted an affirmative
“fair use” defense under 17 U.S.C. § 107 and moved for summary judgment. The district
court granted the motion. Brammer now appeals.
4
II.
The sole issue before us is whether Violent Hues made fair use of Brammer’s
Photo. The fair use defense presents a mixed question of law and fact, requiring us to
“review the district court’s legal conclusions de novo and its findings of fact for clear
error.” Bouchat v. Balt. Ravens Ltd. P’ship, 619 F.3d 301, 307 (4th Cir. 2010) (“Bouchat
IV”). 2 “[W]hen the district court has found facts sufficient to evaluate each of the
statutory fair use factors, an appellate court need not remand for further factfinding but
may conclude as a matter of law that the challenged use does not qualify as a fair use of
the copyrighted work.” Id. (internal quotation marks and alterations omitted).
The fair use affirmative defense exists to advance copyright’s purpose of
“promot[ing] the Progress of Science and useful Arts.” U.S. Const. art. I, § 8, cl. 8; see
also Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994). The defense does so
by allowing “others to build freely upon the ideas and information conveyed by a work.”
Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 350 (1991). But fair use “is not
designed to protect lazy appropriators. Its goal instead is to facilitate a class of uses that
would not be possible if users always had to negotiate with copyright proprietors.”
Kienitz v. Sconnie Nation LLC, 766 F.3d 756, 759 (7th Cir. 2014).
2
Violent Hues maintains that Brammer has forfeited portions of his legal
arguments by failing to present these nuances to the district court. We disagree.
Brammer clearly challenged Violent Hues’ statutory fair use defense before the district
court, and in “assessing whether an issue was properly raised in the district court, we are
obliged on appeal to consider any theory plainly encompassed by the submissions in the
underlying litigation.” U.S. Dep’t of Labor v. Fire & Safety Investigation Consulting
Servs., LLC, 915 F.3d 277, 286 n.9 (4th Cir. 2019) (internal quotation marks omitted).
5
The “ultimate test” of fair use is whether the progress of human thought “would be
better served by allowing the use than by preventing it.” Cariou v. Prince, 714 F.3d 694,
705 (2d Cir. 2013) (internal quotation marks omitted). In applying this test, a court
considers:
(1) the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the
copyrighted work.
17 U.S.C. § 107. A court weighs these factors “together, in light of the purposes of
copyright.” Campbell, 510 U.S. at 578. In ruling for Violent Hues, the district court
found all four factors weighed in favor of fair use. We now consider each factor in turn.
A.
The first factor addresses the “purpose and character” of the secondary use.
17 U.S.C. § 107(1). When assessing this factor, “the primary inquiry is whether the use
‘communicates something new and different from the original or [otherwise] expands its
utility,’ that is, whether the use is ‘transformative.’” Fox News Network, LLC v. Tveyes,
Inc., 883 F.3d 169, 176 (2d Cir. 2018) (alteration in original) (quoting Authors Guild v.
Google, Inc., 804 F.3d 202, 214 (2d Cir. 2015) (“Google Books”)). A court also asks
whether the “use is of a commercial nature or is for nonprofit educational purposes.”
17 U.S.C. § 107(1). Finally, the “propriety of the defendant’s conduct” may be “relevant
to the ‘character’ of the use.” Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S.
539, 562 (1985) (internal quotation marks omitted).
6
1.
The “central purpose” of the first factor’s transformation inquiry is to determine
“whether the new work merely ‘supersede[s] the objects’ of the original creation.”
Campbell, 510 U.S. at 579 (alteration in original) (quoting Folsom v. Marsh, 9 F. Cas.
342, 348 (C.C.D. Mass. 1841) (No. 4,901)). To be transformative, a use must do
“something more than repackage or republish the original copyrighted work.” Authors
Guild, Inc. v. HathiTrust, 755 F.3d 87, 96 (2d Cir. 2014). “[T]he more transformative the
new work, the less will be the significance of other factors . . . that may weigh against a
finding of fair use.” Campbell, 510 U.S. at 579. But if the copying is done to “avoid the
drudgery in working up something fresh, [then] the claim to fairness in borrowing from
another’s work diminishes accordingly (if it does not vanish).” Id. at 580.
The transformation inquiry is largely objective. 3 Often the “only two pieces of
evidence” that are “needed to decide the question of fair use . . . are the original version
. . . and the [secondary use] at issue.” Brownmark Films, LLC v. Comedy Partners, 682
F.3d 687, 690 (7th Cir. 2012). As the Second Circuit has explained, “[w]hat is critical is
3
We reject Violent Hues’ suggestion that we focus our analysis on the subjective
intent of the parties, as the district court did. That court found it significant that
Brammer’s stated purpose in “capturing and publishing the [Photo] was promotional and
expressive,” while Violent Hues’ stated purpose “in using the [Photo] was informational:
to provide festival attendees with information regarding the local area.” But the
difference in the parties’ subjective intent is not the proper focus of the transformation
inquiry, because a mere “difference in purpose is not quite the same thing as
transformation.” Infinity Broad. Corp. v. Kirkwood, 150 F.3d 104, 108 (2d Cir. 1998).
Although a secondary user may “go to great lengths to explain and defend his use as
transformative,” Cariou, 714 F.3d at 707, a simple assertion of a subjectively different
purpose, “by itself, does not necessarily create new aesthetics or a new work,” Monge v.
Maya Magazines, Inc., 688 F.3d 1164, 1176 (9th Cir. 2012).
7
how the work in question appears to the reasonable observer, not simply what an artist
might say about a particular piece or body of work.” Cariou, 714 F.3d at 707.
We thus examine Brammer’s original Photo and Violent Hues’ secondary use of
the Photo side-by-side. Compare Appendix A, with Appendix B. This examination
shows no apparent transformation. The only obvious change Violent Hues made to the
Photo’s content was to crop it so as to remove negative space. This change does not alter
the original with “new expression, meaning or message.” Campbell, 510 U.S. at 579.
Rather, the cropping appears to be purely functional, giving the Photo the same
dimensions as the other images on Violent Hues’ website. This copying is of a kind with
other non-transformative uses. 4
Violent Hues nonetheless contends that it transformed the Photo by placing the
image in a list of tourist attractions. Of course, even a wholesale reproduction may be
transformed when placed in a “new context to serve a different purpose,” but the
secondary use still must generate a societal benefit by imbuing the original with new
function or meaning. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1165 (9th Cir.
4
See, e.g., Monge, 688 F.3d at 1176 (magazine’s use of celebrity photos with
minimal changes not transformative); L.A. News Serv. v. CBS Broad., Inc., 305 F.3d 924,
938–39 (9th Cir. 2002) (“Merely plucking the most visually arresting excerpt from
LANS’s nine minutes of footage cannot be said to have added anything new.”); Ringgold
v. Black Entm’t Television, Inc., 126 F.3d 70, 79 (2d Cir. 1997) (holding use of a poster
as decoration — “a central purpose for which it was created” — not transformative); cf.
Cariou, 714 F.3d at 706, 711 (finding 25 collages transformative as a matter of law
because of changes to “composition, presentation, scale, color palette, and media,” but
remanding as to five uses with “minimal alterations”).
8
2007). By way of illustration, courts have typically found contextual changes sufficiently
transformative in two recurring situations: technological uses and documentary uses.
In the first category, copyrighted works provide raw material for new
technological functions. These functions are indifferent to the expressive aspects of the
copied works. For example, we have held transformative the total reproduction of
student essays for a plagiarism detection service because the database served an “entirely
different function” that was unrelated to the expressive content of those essays. A.V. ex
rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630, 639 (4th Cir. 2009); accord Google
Books, 804 F.3d at 216–17 (holding that an online book archive was “highly
transformative” because it served the purpose of allowing users to search books for terms
of interest); Perfect 10, 508 F.3d at 1165 (holding that an online image search index was
“highly transformative”). This only makes sense: a contrary ruling would have risked
impairing the functionality of these new information-sorting technologies.
In the second category, copyrighted works serve documentary purposes and may
be important to the accurate representations of historical events. These representations
often have scholarly, biographical, or journalistic value, and are frequently accompanied
by commentary on the copyrighted work itself. See, e.g., Bill Graham Archives v.
Dorling Kindersley Ltd., 448 F.3d 605, 609 (2d Cir. 2006) (concert posters transformed
when reproduced in pictorial history of the Grateful Dead); Núñez v. Caribbean Int’l
News Corp., 235 F.3d 18, 23 (1st Cir. 2000) (modeling photograph transformed when
published as part of newspaper coverage of a related controversy). In Bouchat V, we
considered a use of this type and concluded that a professional football team’s logo was
9
transformed through its appearance in a documentary-like television program and in a
display case featuring memorabilia from the team’s history. Bouchat v. Balt. Ravens Ltd.
P’ship, 737 F.3d 932, 944–45 (4th Cir. 2013) (“Bouchat V”). There, we were particularly
concerned that, absent fair use, a copyright holder could “exert enormous influence over
new depictions of historical subjects and events” and effectively remove certain historical
moments from the public domain. Id. at 944.
The copying here does not fall into either of these categories, as Violent Hues used
the Photo expressly for its content — that is, to depict Adams Morgan — rather than for
data organization or historical preservation. Instead, Violent Hues’ sole claim to
transformation is that its secondary use of the Photo provided film festival attendees with
“information” regarding Adams Morgan. But such a use does not necessarily create a
new function or meaning that expands human thought; if this were so, virtually all
illustrative uses of photography would qualify as transformative.
Moreover, none of the underlying concerns that animated iParadigms or Bouchat
V are implicated here. Unlike the secondary users in those cases, Violent Hues’ ability to
accomplish its purpose of communicating information about area tourist attractions
would not be hindered if it had to comply with Brammer’s copyright. And society would
not be left the poorer for it. Tellingly, Violent Hues does not contend that its use
provides any distinct sort of “public benefit” that furthers the “development of art,
science, and industry.” Sundeman v. Seajay Soc’y, Inc., 142 F.3d 194, 203 (4th Cir.
1998) (quoting Rosemont Enters., Inc. v. Random House, Inc., 366 F.2d 303, 307 (2d Cir.
1966)).
10
Because of the minimal changes to the Photo’s content and context, we conclude
that Violent Hues’ copying was not transformative. This weighs against a finding of fair
use.
2.
The first factor also requires a court to ask whether the “use is of a commercial
nature or is for nonprofit educational purposes.” 17 U.S.C. § 107(1). “The crux of the
profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but
whether the user stands to profit from exploitation of the copyrighted material without
paying the customary price.” Bouchat IV, 619 F.3d at 311 (quoting Harper & Row, 471
U.S. at 562). Because “[v]ast numbers of fair uses occur in the course of commercial
ventures,” the weight of this subfactor is reduced when a use is transformative. Bouchat
V, 737 F.3d at 941–42. Accordingly, “the commerciality inquiry is most significant
when the allegedly infringing use acts as a direct substitute for the copyrighted work.”
Id. at 941.
Violent Hues’ website did not generate direct revenue or run advertising. But
Violent Hues is a limited liability company, and it used the Photo on its website to
promote a for-profit film festival. On their own, these facts tend to demonstrate
commercial use.
In assessing commerciality, a court also asks whether the use was exploitative, in
that others usually pay to engage in similar conduct. For example, in Bouchat IV, we
noted that it was “customary for NFL teams to license their copyrighted logos for use in
any number of commercial products,” and that the defendant failed to pay that customary
11
price when it used a copyrighted logo in its team highlight reels. 619 F.3d at 311.
Because the highlight reels did not transform the logo, we had “no hesitation in
concluding that the commercial nature of the use weigh[ed] against a finding of fair use.”
Id.
This case is similar. When a commercial enterprise seeks to illustrate its website,
it is customary to buy licenses for use of appropriate stock imagery. See Johnson, supra,
at 1962−72 (describing stock photography market). Brammer sold such licenses for
stock use of his photos. Violent Hues never bought one of these licenses, and its stock
use of the Photo was not transformative. Given that Violent Hues is a commercial
enterprise and a commercial market exists for stock imagery, its failure to pay the
customary fee was exploitative and weighs against fair use.
3.
Although the secondary use’s non-transformative nature and commercial status
weigh against a finding of fair use, Violent Hues nonetheless asserts that the first factor
counts in its favor because it acted in good faith.
When considering the character of a secondary use, the Supreme Court has
approved weighing bad faith against a secondary user. Harper & Row, 471 U.S. at
562−63 (rejecting fair use defense where defendant “knowingly exploited a purloined
manuscript”). But this approach to bad faith does not necessarily lead to the conclusion
that a showing of good faith weighs in favor of finding a secondary use was fair.
As a basic matter, copyright infringement is a strict liability offense, in which a
violation does not require a culpable state of mind. See CoStar Grp., Inc. v. LoopNet,
12
Inc., 373 F.3d 544, 549 (4th Cir. 2004). When an alleged infringer raises an affirmative
defense, the baseline rule is that “[f]air use presupposes good faith and fair dealing.”
Harper & Row, 471 U.S. at 562 (internal quotation marks omitted).
Because good faith is thus presumed, most appellate courts, when considering a
user’s mental state, have just asked whether the “bad faith subfactor weighs in plaintiffs’
favor.” NXIVM Corp. v. Ross Inst., 364 F.3d 471, 479 (2d Cir. 2004) (emphasis added);
see also Campbell, 510 U.S. at 585 n.18 (casting doubt on the relevance of good faith to
the fair use inquiry); Oracle Am., Inc. v. Google LLC, 886 F.3d 1179, 1203 (Fed. Cir.
2018) (“[W]hile bad faith may weigh against fair use, a copyist’s good faith cannot weigh
in favor of fair use.”), petition for cert. filed, No. 18-956 (U.S. Jan. 24, 2019); Monge,
688 F.3d at 1170 (“[T]he innocent intent of the defendant constitutes no defense to
liability.” (quoting 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright
§ 13.08[B][1] (Matthew Bender rev. ed. 2011))). Only the First Circuit has derived a
good-faith rule from the bad-faith proposition presented in Harper & Row. See Núñez,
235 F.3d at 23 (finding newspaper’s print attribution of image to copyright holder as
relevant to first fair use factor). We doubt the validity of such an extension.
But “regardless of the weight one might place on the alleged infringer’s state of
mind,” we see no reason to tip the scales in Violent Hues’ favor. Campbell, 510 U.S. at
585 n.18. Whatever relevance good faith has to the fair use inquiry, Violent Hues has not
offered any evidence that it acted in good faith. At best, Violent Hues appears to have
acted negligently. Violent Hues’ owner, Fernando Mico, stated that he believed the
Photo was freely available. But contrary to Violent Hues’ suggestion, this does not end
13
the matter. For Mico did not explain why this belief was reasonable given that all
contemporary photographs are presumptively under copyright, 17 U.S.C. § 302(a), and
given his own acknowledgment that he downloaded the Photo from Flickr, which stated
“© All rights reserved” in the Photo caption.
We thus conclude that Violent Hues’ claim of good faith does nothing to aid its
fair use defense. The district court clearly erred by finding otherwise. Because Violent
Hues’ reproduction of the Photo was non-transformative and commercial, we must weigh
the first factor against a finding of fair use.
B.
The second factor involves the “nature of the copyrighted work” and requires a
court to determine the level of protection the Photo merits. 17 U.S.C. § 107(2). In doing
so, a court assesses “the ‘thickness’ or ‘thinness’ of [the author’s] exclusive rights” and
asks “whether or not the [work] had been published at the time of [secondary] use.”
Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73, 87 (2d Cir. 2014).
Because “some works are closer to the core of intended copyright protections than
others,” and so have thicker rights, this factor teaches that “fair use is more difficult to
establish” when such works are copied. Campbell, 510 U.S. at 586.
We first consider the thickness of Brammer’s rights. When determining the
thickness of a photograph’s copyright, a court weighs the “range of creative choices
available in selecting and arranging the photo’s elements,” examining aspects like
“lighting, camera angle, depth of field, and selection of foreground and background
elements.” Rentmeester v. Nike, Inc., 883 F.3d 1111, 1120–21 (9th Cir. 2018). The
14
ultimate task is to separate the “facts or ideas set forth in a work,” which are not
protected, from the “author’s manner of expressing those facts and ideas,” which is
protected. Google Books, 804 F.3d at 220.
As a basic matter, photographs are “generally viewed as creative, aesthetic
expressions of a scene or image” and have long received thick copyright protection.
Monge, 688 F.3d at 1177. This is so even though photographs capture images of reality.
See id. (“Simply because a photo documents an event does not turn a pictorial
representation into a factual recitation . . . . Photos that we now regard as iconic often
document an event — whether the flight of the Wright Brothers’ airplane, the sailor’s
kiss in Times Square on V–J Day, the first landing on the moon, or the fall of the Berlin
Wall.”).
In taking the photograph at issue here, Brammer made many creative choices. He
alleges that he set up at a “private, rooftop location” and “experimented with numerous
shutter speed and aperture combinations.” The resulting Photo is a stylized image, with
vivid colors and a bird’s-eye view. Notably, the vehicle traffic appears as streaks of light.
The Photo’s subject may be a real-world location, but that location does not, in reality,
appear as shown. This creativity entitles the Photo to thick copyright protection.
Although Brammer could not prevent others from taking night-time photographs of
Adams Morgan, he surely can assert his rights in his own expression of that scene.
In evaluating the nature of the copyrighted work, courts also consider, where
relevant, its publication status. If “a work is unpublished,” that is “a critical element of
its ‘nature.’” Harper & Row, 471 U.S. at 564. Put differently, when a work is
15
unpublished, the “scope of fair use is narrower” because the author has the “right to
control the first public appearance of his expression.” Id. Violent Hues asks us to derive
a corollary principle from the Harper & Row rule: that the fact that Brammer published
the Photo must necessarily weigh in favor of fair use. We reject this argument.
The Supreme Court has never suggested that publication status is relevant to all
invocations of fair use. Indeed, subsequent to Harper & Row, the Court considered
whether a parody of the song, “Oh, Pretty Woman,” was fair, but made no reference to
the fact that the song had been published thirty years earlier when assessing its nature.
See Campbell, 510 U.S. at 571–72, 586. Similarly, we believe the published status of the
Photo has no relevance here. We also note that Harper & Row involved a literary work,
in which the “right of first publication” is particularly significant because such works,
unlike photographs or melodies, are often considered only once. See Harper & Row, 471
U.S. at 564 (suggesting that “even substantial quotations might qualify as fair use in a
review of a published work or a news account of a speech that had been delivered to the
public or disseminated to the press”). In short, context matters. Whatever the wisdom of
extending the Harper & Row rule in the realm of literary works, the considerations differ
in the area of photography, as “visual works are created, and sold or licensed, usually for
repetitive viewing.” Ringgold, 126 F.3d at 79.
Because Brammer’s Photo merits thick protection and because we find the Photo’s
published status has no effect here, the second factor also weighs against fair use.
16
C.
The third factor addresses the “amount and substantiality of the portion used.”
17 U.S.C. § 107(3). The key question is “whether ‘no more was taken than necessary’”
to accomplish the secondary user’s purpose. HathiTrust, 755 F.3d at 98 (quoting
Campbell, 510 U.S. at 589). “The extent of permissible copying varies with the purpose
and character of the use.” Sundeman, 142 F.3d at 205–06 (internal quotation marks and
alteration omitted). Even a substantial taking “can constitute fair use if justified.” TCA
Television Corp. v. McCollum, 839 F.3d 168, 185 (2d Cir. 2016). But “[u]nless the use is
transformative, the use of a copyrighted work in its entirety will normally weigh against a
finding of fair use.” Bouchat IV, 619 F.3d at 311.
Here, Violent Hues used roughly half of the Photo. Moreover, Violent Hues
merely removed the negative space and kept the most expressive features, which
constituted the “heart of the work.” Sundeman, 142 F.3d at 205. Given that Violent
Hues’ use was non-transformative, this considerable taking was not justified. See Google
Books, 804 F.3d at 215 (“A secondary author is not necessarily at liberty to make
wholesale takings of the original author’s expression merely because of how well the
original author’s expression would convey the secondary author’s different message.”).
Violent Hues could just as easily have accomplished its goal of depicting Adams Morgan
by taking its own photograph or finding an image under free license. The third factor
thus weighs against fair use.
17
D.
The fourth and final statutory factor contemplates “the effect of the use upon the
potential market for or value of the copyrighted work.” 17 U.S.C. § 107(4). This factor
requires us to consider “not only the extent of market harm caused by the particular
actions of the alleged infringer, but also whether unrestricted and widespread conduct of
the sort engaged in by the defendant would result in a substantially adverse impact on the
potential market for the original.” Campbell, 510 U.S. at 590 (internal quotation marks
and alterations omitted); accord Bouchat IV, 619 F.3d at 312 (“[O]ne need only show that
if the challenged use should become widespread, it would adversely affect the potential
market for the copyrighted work.” (quoting Harper & Row, 471 U.S. at 568)). A
“common sense” presumption of cognizable market harm exists when a commercial use
is not transformative but instead “amounts to mere duplication of the entirety of an
original.” Campbell, 510 U.S. at 591.
That presumption applies here. Violent Hues made commercial use of the Photo
and duplicated the heart of the work by copying the Photo’s most expressive features.
Brammer thus need not demonstrate that the licensing market for his Photo would be
depressed should Violent Hues’ behavior become widespread. Even so, Brammer
introduced evidence showing that he has, on two occasions, licensed this specific Photo
for online use. In one instance, a real estate company paid Brammer a $1,250 fee to use
the Photo as a stock image to represent Adams Morgan on its website — a similar use to
that of Violent Hues. If the real estate company had acted as Violent Hues did, Brammer
would not have received that fee. Indeed, if Violent Hues’ behavior became common and
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acceptable, the licensing market for Brammer’s work specifically, and professional
photography more broadly, might well be dampened.
Violent Hues asks that we affirm the district court’s conclusion that Brammer did
not show market harm because he made two sales of the Photo after Violent Hues’ use
began. That cannot be correct. If the mere fact of subsequent sales served to defeat a
claim of market harm, then commercially successful works could hardly ever satisfy this
factor. Like the others, the fourth factor weighs against fair use.
E.
After examining the four factors, we conclude that none weighs in favor of Violent
Hues. Considering these factors together, it is clear that the copying here fails the
“ultimate test” of fair use: Violent Hues’ online display of Brammer’s Photo does not
serve the interest of copyright law. Cariou, 714 F.3d at 705.
“[C]opyright law embodies a recognition that creative intellectual activity is vital
to the well-being of society,” and fair use exists to “stimulate creativity and authorship”
of derivative but new works. Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L.
Rev. 1105, 1109 (1990). Violent Hues’ “informational” use of the Photo as a stock
image does not further this intellectual objective because Violent Hues said nothing new
through this use. Instead, allowance of Violent Hues’ defense would frustrate copyright’s
central goal. If the ordinary commercial use of stock photography constituted fair use,
professional photographers would have little financial incentive to produce their work.
We reach our conclusion with the recognition that the Internet has made copying
as easy as a few clicks of a button and that much of this copying serves copyright’s
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objectives. Many social media platforms like Twitter, Facebook, and Instagram are
specifically designed for the participatory “sharing” — or copying — of content. We
express no opinion as to whether such sharing constitutes fair use. We note, however,
that Violent Hues’ use is not of this kind.
Violent Hues did not comment on the Photo, promote the Photo, “remix” the
Photo, or otherwise engage with the Photo in a way that might stimulate new insights.
See H. Brian Holland, Social Semiotics in the Fair Use Analysis, 24 Harv. J.L. & Tech.
335, 390–91 (2011). What Violent Hues did was publish a tourism guide for a
commercial event and include the Photo to make the end product more visually
interesting. Such a use would not constitute fair use when done in print, and it does not
constitute fair use on the Internet. Violent Hues’ affirmative defense thus fails as a
matter of law.
III.
For the foregoing reasons, we reverse the judgment of the district court and
remand the case for further proceedings consistent with this opinion.
REVERSED AND REMANDED
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APPENDICES
Appendix A
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Appendix B
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