Fourth Circuit Rules Use of Stock Photo Not Fair Use

Photographs and other graphics are important elements of many commercial websites.

The internet abounds with photographs that appear to be free for the taking. Many website developers simply search for and copy photographs (and other graphics) that fit their site.

But a recent Fourth Circuit decision, Brammer v. Violent Hues Productions, LLC (4th Cir. 2019), stands as a warning that commercial websites are expected to pay a license fee for use of a photograph, and in almost all cases, such use will not be excused as a “fair use.”

Caution thus must be used before appropriating photographs or other graphics, as they may well be protected by copyright, and their copying and use will constitute infringement.

Companies and individuals operate websites for all sorts of purposes, from commercial to artistic. Given that the internet is largely a visual experience, the use of photographs can be highly effective. As the old adage goes, a picture is worth a thousand words.

Given that the internet abounds with photographs and graphics that are easily searched for and copied, many web developers simply do so. But this comes with the danger that a photographer or graphic artist maintains copyright in the work, and will seek compensation through a lawsuit. A recent Fourth Circuit decision stands as a warning to companies that ignore this reality.

Russell Brammer is a commercial photographer who licenses his photographs online. He created an artistic rendering of the Adams Morgan neighborhood in Washington, D.C., and posted it on a website as “stock photography” for licensing. He licensed it twice for online use, once for $1,250 and once for $750.

Violent Hues, a film production company, operates a website promoting the Northern Virginia Film and Music Festival, a for-profit event. Part of the site touted tourist areas near the festival that attendees might wish to visit, including Washington D.C. Violent Hues found the Adams Morgan photo on a website and copied, without payment, it to its own promotion site.

Brammer commenced a copyright infringement suit; the district court ruled on summary judgment that the use was fair, on appeal the Fourth Circuit reversed, finding it, as a matter of law, not fair. Brammer v. Violent Hues Productions, LLC (4th Cir. 2019)

The fair-use defense to copyright infringement, codified at 17 U.S.C. § 107, can often be murky to apply in practice. The heart of the Brammer opinion deals with whether the use was “transformative,” a benchmark test employed by many federal courts in fair use cases.

One type of transformative use is when the work itself is changed. Violent Hues did crop the photo to fit the proportions of other photographs on its website. But this was far too trivial to qualify as a transformative use.

The other type of transformation is contextual – when the photograph is used for a different purpose. For example, in a prior Fourth Circuit case, a company had uploaded student essays to a software program used to detect plagiarism. That purpose was an “entirely different function” from the expressive content of the essays.

Or, prior Second and Ninth Circuit cases had held that uploading books or images to facilitate a technical search function constituted fair use. This was because using a work for “information sorting technologies” is a different purpose from their expressive purpose.

Another type of contextual transformation is to document certain events, such as for scholarly, biographical or journalistic purposes. These are usually accompanied by some commentary or additional expression.

The Violent Hues use, in contrast, had none of these transformational aspects. It merely copied an artistic depiction of a Washington D.C. neighborhood for the same purpose: to depict the neighborhood.

The Fourth Circuit also considered the four factors set out in Section 107. The fact that the website was used to promote a for-profit film festival, and that the photographer had licensed the same photograph before for a fee, only weighed against fair use. As the Fourth Circuit concluded:

When a commercial enterprise seeks to illustrate its website, it is customary to buy licenses for use of appropriate stock imagery. . . . 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.