Controversial copyright ruling based on ‘faulty understanding’

A copyright ruling against a photographer whose work was re-used has been criticized as a “very poor decision,” based on “a faulty understanding of the fair use doctrine,” by copyright lawyer Bert Krages.

The case began in 2017 when photographer Russell Brammer found one of his pictures (a long exposure shot of Adams Morgan, Washington D.C.) had been used on a website promoting the Northern Virginia Film Festival.  He asked for the firm to take the image down and sued for copyright infringement.  The image had been taken in 2011 and was uploaded to Flickr with an “All Rights Reserved” copyright notice.

In a ruling that shocked multiple legal experts, Judge Claude Hilton of the Eastern District of Virginia ruled against the photographer.  The widely-reported ‘Brammer v. Violent Hues LLC’ case in the Eastern District of Virginia appeared to accept that the use of a crop of a photograph without permission as fair use.  However, while Krages questioned the decision, he also stressed that “the decision does not serve as precedent in other cases,” though he thinks “it’s likely that other defendants in copyright cases will cite to the case in the hopes of getting a favourable decision.”

Violent Hues removed the image upon being contacted by Brammer, but the photographer sued, both for copyright infringement and for removing copyright information from the image.  The court dismissed the copyright removal claim but then made a controversial ruling that Violent Hues’ use was covered by the ‘fair use’ exemption from copyright protection.

‘Fair use’ in US copyright law includes the consideration of four basic tests:

• The purpose and character of the use, including whether such use is of a commercial nature. . .
• The nature of the copyrighted work.
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
• The effect of the use upon the potential market for or value of the copyrighted work.

Full story in PetaPixel.

The court’s ruling in the case can be found in its entirety HERE.