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Brammer v. Violent Hues Productions, LLC

United States Court of Appeals, Fourth Circuit

April 26, 2019

RUSSELL BRAMMER, Plaintiff - Appellant,
v.
VIOLENT HUES PRODUCTIONS, LLC, Fernando Mico, Owner, Defendant-Appellee. AMERICAN PHOTOGRAPHIC ARTISTS; AMERICAN SOCIETY OF MEDIA PHOTOGRAPHERS, INC.; ARTS & ENTERTAINMENT ADVOCACY CLINIC AT GEORGE MASON UNIVERSITY ANTONIN SCALIA LAW SCHOOL; COPYRIGHT ALLIANCE; DIGITAL JUSTICE FOUNDATION; PACA, DIGITAL MEDIA LICENSING ASSOCIATION, INC.; VOLUNTEER LAWYERS FOR THE ARTS, INC.; NEW YORK INTELLECTUAL PROPERTY LAW ASSOCIATION; NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION; GRAPHIC ARTISTS GUILD, INC., Amici Supporting Appellant.

          Argued: March 19, 2019

          Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:17-cv-01009-CMH-IDD)

         ARGUED:

          David Christopher Deal, LAW OFFICE OF DAVID C. DEAL PLC, Crozet, Virginia; David Leichtman, LEICHTMAN LAW PLLC, New York, New York, for Appellant.

          Thomas Patrick Weir, KIRKLAND & ELLIS, LLP, Washington, D.C., for Appellee.

         ON BRIEF:

          Tatsuya Adachi, LEICHTMAN LAW PLLC, New York, New York, for Appellant.

          Judson D. Brown, Paul J. Weeks, KIRKLAND & ELLIS, LLP, Washington, D.C., for Appellee. Scott J. Sholder, Nancy E. Wolff, COWAN, DEBAETS, ABRAHAMS & SHEPPARD, LLP, New York, New York, for Amicus PACA, Digital Media Licensing Association, Inc. Jay Cohen, Darren W. Johnson, Stephen B. Popernik, Matthew P. Merlo, Anne E. Simons, PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, New York, New York; Kathryn E. Wagner, Amy A. Lehman, VOLUNTEER LAWYERS FOR THE ARTS, INC., New York, New York, for Amicus Volunteer Lawyers for the Arts, Inc. Peter G. Thurlow, New Yok Intellectual Property Law Association, President, POLSINELLI PC, New York, New York; Martin B. Schwimmer, Lauren B. Emerson, Robert M. Isackson, Second Vice President, Amicus Brief Committee Board Liaison, New York Intellectual Property Law Association, LEASON ELLIS LLP, White Plains, New York; Mitchell Stein, SULLIVAN & WORCESTER LLP, New York, New York, for Amicus New York Intellectual Property Law Association. Keith Kupferschmid, Terry Hart, COPYRIGHT ALLIANCE, Washington, D.C.; Jacqueline C. Charlesworth, Michelle Choe, New York, New York, Beth S. Brinkmann, Michael J. Gaffney, COVINGTON & BURLING LLP, Washington, D.C., for Amicus Copyright Alliance. Thomas B. Maddrey, AMERICAN SOCIETY OF MEDIA PHOTOGRAPHERS, INC., Dallas, Texas, for Amici American Society of Media Photographers, Inc. and Graphic Artists Guild, Inc. Mickey H. Osterreicher, General Counsel, Alicia Calzada, Deputy General Counsel, NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION, Athens, Georgia, for Amici American Society of Media Photographers, Inc., National Press Photographers Association, Graphic Artists Guild, Inc., and American Photographic Artists. Antigone Gabriella Peyton, David Christopher Johnson, PROTORAE LAW PLLC, Tysons, Virginia, for Amicus Arts & Entertainment Advocacy Clinic at George Mason University Antonin Scalia Law School. Andrew Grimm, Omaha, Nebraska, Gregory Keenan, DIGITAL JUSTICE FOUNDATION, Floral Park, New York, for Amicus Digital Justice Foundation.

          Before MOTZ, KING, and THACKER, Circuit Judges.

          Judge Motz wrote the opinion, in which Judge King and Judge Thacker joined.

          DIANA GRIBBON MOTZ, CIRCUIT JUDGE

         Russell Brammer, a commercial photographer, brought this copyright infringement action after learning that Violent Hues Productions, LLC, had made an unlicensed use of one of his photographs on its website. The district court granted summary judgement to Violent Hues, ruling that this unauthorized display constituted "fair use" under the Copyright Act, 17 U.S.C. § 107. For the reasons that follow, we reverse and remand for further proceedings consistent with this opinion.

         I.

         Brammer licenses his work as stock imagery.[1] On November 19, 2011, Brammer shot the photograph "Adams Morgan at Night" ("Photo") from a rooftop in Washington, D.C. The color-saturated Photo depicts a busy street during the evening in the Adams Morgan neighborhood, with the vehicle traffic rendered as red and white light trails. See Appendix A. After processing the Photo, Brammer published a digital copy on his own website. Brammer also uploaded the Photo to the image-sharing website Flickr, including the phrase "© All rights reserved" beneath it. Appendix A. In the past, Brammer has sold physical prints of the Photo - for $200 to $300 - and licensed it for online use twice - once for $1, 250, and once for $750.

         In 2016, Fernando Mico, the owner of the Violent Hues film production company, posted the Photo on novafilmfest.com, a website belonging to the company. That website promoted the Northern Virginia International Film and Music Festival, a revenue-generating event. The website contained a page titled "Plan Your Visit," which highlighted various tourism attractions around the Washington metropolitan area. Mico posted a cropped version of Brammer's Photo above the caption "Adams Morgan, DC," without any attribution or other commentary. See Appendix B.

         Mico believes that he found the Photo "through a Google Images search, which led [him] to the website Flickr." Mico maintains that he did not see any "indication on the Photo itself or the Flickr website that the Photo was copyrighted," and so believed it to be publicly available. After downloading the Photo, Mico cropped out the Photo's negative space "for stylistic reasons" before putting it on novafilmfest.com.

         After Brammer discovered this unauthorized use, his counsel sent a letter to Violent Hues requesting compensation for the use. In response, Violent Hues removed the Photo from its website, but did not compensate Brammer.

         Brammer then initiated this copyright infringement action against Violent Hues, seeking damages and attorney's fees. In response, Violent Hues asserted an affirmative "fair use" defense under 17 U.S.C. § 107 and moved for summary judgment. The district court granted the motion. Brammer now appeals.

          II.

         The sole issue before us is whether Violent Hues made fair use of Brammer's Photo. The fair use defense presents a mixed question of law and fact, requiring us to "review the district court's legal conclusions de novo and its findings of fact for clear error." Bouchat v. Balt. Ravens Ltd. P'ship, 619 F.3d 301, 307 (4th Cir. 2010) ("Bouchat IV").[2] "[W]hen the district court has found facts sufficient to evaluate each of the statutory fair use factors, an appellate court need not remand for further factfinding but may conclude as a matter of law that the challenged use does not qualify as a fair use of the copyrighted work." Id. (internal quotation marks and alterations omitted).

         The fair use affirmative defense exists to advance copyright's purpose of "promot[ing] the Progress of Science and useful Arts." U.S. Const. art. I, § 8, cl. 8; see also Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994). The defense does so by allowing "others to build freely upon the ideas and information conveyed by a work." Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 350 (1991). But fair use "is not designed to protect lazy appropriators. Its goal instead is to facilitate a class of uses that would not be possible if users always had to negotiate with copyright proprietors." Kienitz v. Sconnie Nation LLC, 766 F.3d 756, 759 (7th Cir. 2014).

         The "ultimate test" of fair use is whether the progress of human thought "would be better served by allowing the use than by preventing it." Cariou v. Prince, 714 F.3d 694, 705 (2d Cir. 2013) (internal quotation marks omitted). In applying this test, a court considers:

         “(1) the purpose and character of the use, including whether such use is of a commercial nature or is ...


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