Addressing whether the fair use defense applies to the use of stock photographs under the Copyright Act, the US Court of Appeals for the Fourth Circuit concluded that a company’s commercial use of an unlicensed photograph constitutes copyright infringement. Brammer v. Violent Hues Productions, LLC, Case No. 18-1763 (4th Cir. Apr. 26, 2019) (Motz, J).

From a private rooftop in the Washington, DC, Adams Morgan neighborhood, professional photographer Russell Brammer captured a nighttime time-lapse image of a busy street with vehicle traffic rendered as red and white light trails. He published a processed version of the “Adams Morgan at Night” photograph on his website and on an image sharing site, Flickr, including the phrase “© All Rights Reserved” beneath it. Fernando Mico, owner of Violent Hues Production, admittedly copied Brammer’s photograph off Flickr, cropped out the photo’s negative space, and posted the photo on a commercial website promoting tourism in the Washington metropolitan area.

When Violent refused to compensate Brammer for use of his copyrighted photograph, Brammer sued Violent for copyright infringement. Mico asserted that he saw no indication that the photograph was copyrighted and believed that he was making use of a publicly available photograph. Violent argued that its use of the photo was fair use and therefore not infringement. The district court explored the four-factor test for a fair use defense before determining that Violent’s use of the photo was fair use and granted summary judgment in favor of the defendant. Brammer appealed.

The Fourth Circuit addressed the sole issue of whether Violent made fair use of Brammer’s photo. Applying the four-factor test, the Court noted that the ultimate test of fair use is whether the progress of human thought would be better served by allowing the use, rather than preventing it.

First, the Court assessed whether Violent’s use of the photo was transformative. The purpose of the “transformation inquiry” is to determine whether the new work does something more than just repackage or republish the original copyrighted work. This inquiry is primarily objective. Courts look at how the works appear to the reasonable observer—not what an artist has to say about a work. Rejecting Violent’s argument that the court should focus on the subjective intent of the parties, the Fourth Circuit examined the photos side-by-side and found no apparent transformation. The Court noted that although a copyrighted work can be transformed by being placed in a new context to serve a new purpose, such as in a documentary, the secondary use must still generate a societal benefit by infusing the original with new meaning or function. That was not the case here. The court found no transformation by Violent’s use of the photo to provide “information” about Adams Morgan.

Second, the Fourth Circuit analyzed the level of protection the photo merited by assessing the scope of the author’s exclusive rights. The Court determined that Brammer had “thick” copyright protection in the photo because of his range of creative choices in selecting and arranging the photo’s elements, including shutter speed and aperture combinations. Because of the thick protection, the Court determined that the fact that the photo was published online had no effect on the second factor weighing against fair use.

Third, the Fourth Circuit found that Violent used roughly half of the photo, merely removing the negative space and keeping the most expressive features. Since Violent kept the “heart of the work,” the third factor also weighed against fair use.

Fourth, the Court determined the presumption of market harm applied. Because Violent made commercial use of the photo and duplicated the heart of the work by copying the photo’s most expressive features, Brammer did not need to demonstrate that the potential market for his copyrighted work would be depressed should Violent’s behavior become widespread.

After determining that Violent’s use of the photo did not constitute fair use, the Fourth Circuit reversed the judgment of the district court.