A ruling from a court out of the Eastern District of Virginia in the United States last month is challenging the traditional notion of photography copyright laws with its declaration that photographs are “factual depictions” that do not render them eligible for protections under copyright law. While not a nationwide ruling and only one with limited impact at this time, the judge’s decision is nonetheless perplexing because it both challenges established law with regard to copyright and photography as well as basing its logic on a somewhat narrow platform – since the photograph in question was not being used for commercial purposes, it was not in violation of any copyright law and was informational in nature.
The case, Brammer v.Violent Hues Productions LLC, is presented with the following facts according to Nova Southeastern University:
- The photographer/plaintiff took a time-lapse photo of a well-known Washington, D.C. neighborhood – Adams-Morgan
- The defendant uses the photo described above to advertise the Northern Virginia Film Festival
- A cease-and-desist letter was sent to Violent Hues Productions, LLC
- The defendant then removes the offending photo
- The plaintiff sues for copyright infringement
- The defendant claims “fair use”
In a ruling, the Judge stated:
“Violent Hues’ use of the photograph was transformative in function and purpose. While Brammer’s purpose in capturing and publishing the photograph was promotional and expressive, Violent Hues’ purpose in using the photograph was informational: to provide festival attendees with information regarding the local area. Furthermore, this use was non-commercial, because the photo was not used to advertise a product or generate revenue.”
One interesting aspect left untouched by the statement above is that the photographer chose to use a time-lapse photo over a regular photo. One can only assume this is because the time-lapse photo made for a more compelling scene but, again, as any photographer will tell you, taking such a shot is no easy task. According to this ruling there is some kind of informational position for a time-lapse photo, although what that would be remains a mystery.
The ruling continues:
“In addition to being transformative and non-commercial, Violent Hues’ use of the photo was also in good faith. The record indicates that Mr. Mico, Violent Hues’ owner, found the photo online and saw no indication that it was copyrighted. Mr. Mico attests that he thus believed the photo was publically available. This good faith is further confirmed by the fact that as soon as Violent Hues learned that the photo may potentially be copyrighted, it removed the photo from its website.”
The ruling then goes on to describe Violent Hues actions as being in good faith and even cites Violent Hues ignorance as to the existence of a copyright on the photo as being evidence of a simple, non-malicious error. That may be well and true but a copyright exists the moment a creative work is placed into “tangible media.” Further, the artist is under no obligation to note copyright on a work.
The ruling continues:
“However, if the disputed use of the copyrighted work ‘is not related to its mode of expression but rather to its historical facts,’ then the creative nature of the work is mitigated.’ (citation omitted) The photograph in question contained creative elements (such as lighting and shutter speed choices) but was also a factual depiction of a real-world location: the Adams Morgan neighborhood in Washington, D.C. Violent Hues’ used the photo purely for its factual content, to provide festival attendees a depiction of the Adams Morgan neighborhood.”
The ruling then moves into the lack of damages from Violent Hues misuse of Brammers’ copyrighted work, even citing licenses he granted after Violent Hues’ abuse of his copyright against him, using these deals as proof that there was no adverse impact on Brammer from a financial standpoint. But that scope is much too idiosyncratic and personal and perhaps not what is meant by an “adverse market impact.” The adverse market impact comes from the initial licensing of the media which then apparently gives others free reign to use that media, in different contexts, without paying a license.
Though limited in impact, the ruling is nonetheless quite terrifying from the standpoint of photographers who already struggle to keep their work under lock and key.
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