On Monday, attorneys for the National Press Photographers Association weighed in on an appeal of a copyright ruling that NPPA says would lead to widespread copyright abuse if upheld.
The case began when Violent Hues Production, LLC, a film festival organizer, lifted a professional time-lapse photo of the Adams Morgan neighborhood in the Washington, D.C. area and used it on their website to promote their festival. When the photographer, Russell Brammer, sued for copyright infringement, Violent Hues claimed their use of the photo fell under “fair use,” a defense to copyright infringement. The district court agreed, and granted summary judgment, dismissing the claim. Brammer has appealed to the U.S. Court of Appeals for the Fourth Circuit, where NPPA filed its amicus (friend of the court) brief. NPPA’s attorneys, Mickey Osterreicher and Alicia Calzada, joined by the American Society of Media Photographers, Inc. (ASMP) attorney Thomas Maddrey, explained to the Fourth Circuit why the lower court ruling was flawed and how upholding such a ruling would devastate the market for freelance news photography.
In dismissing the case, the district court weighed the four “fair use” factors, erring in each one according to NPPA. For example, even though the photo was used for the purpose of marketing the festival, the court found that the use was not commercial. But, citing a quintessential Supreme Court case on fair use, the brief explained that “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.”
The district court also erred when it determined that the owner of the festival had “good faith” that weighed in favor of fair use because the owner of the festival “found the photo online and saw no indication that it was copyrighted.” The brief explained that not only is “good faith” not a proper part of a fair use analysis but that most photos taken in recent decades are likely copyrighted, and using a professional image without investigating whether the photo is subject to copyright is actually a form of reckless, willful blindness, that has led to enhanced penalties in other courts.
The brief also explained how the district court’s analysis improperly weighed the factual nature of the image, and its infringing use against the photographer, when such findings should have favored him. As the brief argued, “factual works are entitled to protection from use in a factual manner.” The brief further explained how NPPA’s Code of Ethics requires news photographers to be factual but that should not entitle those works to any less protection.
Finally, the brief outlined how the district court’s ruling could devastate the market for photography licensing, explaining that “if Violent Hues—a business that desires to use professional photography for its marketing effort—can simply steal this work instead of license it, all other businesses can and will follow suit, and, consequently, an entire industry will be negatively impacted, if not demolished.”
The brief was also joined by American Photographic Artists and Graphic Artists Guild, Inc. Other organizations, including the Copyright Alliance, of which NPPA is a member, also filed amicus briefs supporting the photographer in the case.
To read a copy of the amicus brief, click here.