On World IP Day, the Fourth Circuit Court of Appeals gave photographers everywhere a reason to celebrate by ruling in favor of a photographer whose work had been infringed online and holding that a lower court was wrong in granting a “fair use” defense. In its ruling, the appeals court held that the infringer's use of the photograph failed all four factors of the fair-use analysis, completely reversing a lower court’s contrary ruling.
The underlying case drew the attention of the NPPA’s attorneys because the judge in the lower court had absolved a company, Violent Hues Production, of infringing photographer Russell Brammer’s work by finding that it was “fair use,” a defense to copyright infringement that typically protects the right to comment on a work or use a work in certain limited transformative ways. In reading the lower court ruling, NPPA determined that all four factors were incorrectly analyzed by the trial court and it would have been dangerous for all photographers for the opinion to stand.
NPPA attorneys Mickey Osterreicher and Alicia Calzada worked together with ASMP attorney Tom Maddrey to file a joint amicus brief in the court of appeals, arguing in support of the photographer. The brief was joined by The American Photographic Artists and the Graphic Artists Guild. The appeals court agreed with the visual associations, explaining that “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.”
One of the points highlighted in the visual associations’ amicus brief was the trial court’s erroneous determination that the infringer had acted in “good faith” and the court’s further finding that such good faith would favor a determination of fair use. The appellate court vigorously rejected that idea, holding that while a court might consider bad faith in a fair use analysis, good faith was not relevant because copyright infringement is a strict liability offense, meaning that the state of mind of the infringer is irrelevant. The court further rejected Violent Hues assertion that it acted in good faith when it believed that the photo was freely available, because “all contemporary photographs are presumptively under copyright,” and the photo was downloaded from Flickr with a caption which stated, “© All rights reserved”.
In its overwhelmingly favorable holding, the appeals court wrote that “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.” Further, the court held that Violent Hues arguments 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,” a point made by the visual associations.
“This is a wonderful way to celebrate World IP Day, and we are very pleased to see this decision overturning one of the most egregious fair use rulings that many of us who defend copyright can remember,” said Osterreicher, one of the co-authors of the brief. “We hope that this will be seen as a clear message that it is much better and far cheaper to seek permission and license images than it is to steal them.”
“It’s incredibly rewarding to see such a resounding rejection of anti-copyright ideas.” Calzada, another co-author of the brief added, “It’s a tough decision for a photographer to pursue an appeal in a copyright case because of the financial risks, and we are grateful that Russell Brammer and his attorneys saw the long-term benefits of doing so—their commitment benefits all photographers.”
The full document for the court ruling.