Argued: March 19, 2019
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)
Christopher Deal, LAW OFFICE OF DAVID C. DEAL PLC, Crozet,
Virginia; David Leichtman, LEICHTMAN LAW PLLC, New York, New
York, for Appellant.
Patrick Weir, KIRKLAND & ELLIS, LLP, Washington, D.C.,
Tatsuya Adachi, LEICHTMAN LAW PLLC, New York, New York, for
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.
MOTZ, KING, and THACKER, Circuit Judges.
Motz wrote the opinion, in which Judge King and Judge Thacker
GRIBBON MOTZ, CIRCUIT JUDGE
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.
licenses his work as stock imagery. 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.
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.
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.
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.
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.
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"). "[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).
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).
"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:
the purpose and character of the use, including whether such
use is of a commercial nature or is ...