Following a controversial ruling in a copyright infringement case in Virginia, attorney (and former photographer) David Deal says he is appealing the decision on behalf of photographer Russell Brammer.

Brammer sued Violent Hues Productions in 2017 for unauthorized use of a time-lapse photograph of the Adams Morgan neighborhood of Washington, DC. Violent Hues, which organizes the annual Northern Virginia Film Festival, used Brammer’s photo on a website intended to provide festival attendees with information about lodging, transportation, and things to do in the northern Virginia/Washington D.C. area.

According to court documents, Violent Hues owner Fernando Mico used a cropped version of the photo after finding it online. Mico “saw no indication that the photo was copyrighted and believed he was making use of a publicly available photograph,” U.S. District Court Judge Claude M. Hilton noted in his ruling.

Judge Hilton went on to dismiss Brammer’s infringement claim on the grounds that “Violent Hues’ use of the photo was a fair use, and therefore did not constitute infringement.”

Judge Hilton based the decision on a four-pronged test for fair use, but his most controversial finding concerned the first prong: the purpose and character of the use. According to Judge Hilton’s decision, the use of Brammer’s image was “transformative”—and therefore favored a finding of fair use—because Brammer made the image for “promotional and expressive” purposes, while “Violent Hues’ purpose in using the photograph was informational.”

“Judge Hilton introduced aspects of fair use that had never been used before,” Deal said of the decision in a phone interview with PDN. He added, “The court is opening the door that any use, other than my client’s use, is a fair use…that’s not close to the scope of fair use.” Deal explains that to be considered transformative, the use of a copyrighted work must be “completely different,” such as “satire, commentary, or something that doesn’t resemble the [original] work.”

Deal says it is important to appeal the decision not only to protect Brammer’s copyrights, but to prevent the decision from being cited to fend off photographers’ copyright claims on fair use grounds in courts all over the country. “This is how understanding of the law changes. It happens slowly. If we write the decision off as not that big of a deal”—because it is a district court decision, with little weight as precedent—“we’ll eventually find ourselves on the wrong end of things.”

In other words, the definition of a “transformative” use could gradually become overly broad, to the disadvantage of copyright holders.

Nancy Wolff, an intellectual property attorney who represents the Digital Media Licensing Association, also criticized the ruling. “The judge got the factors [ie, fair use tests] wrong and misunderstands what it means for an image to be transformative,” she told PDN via email. “In my view, if an image is used to illustrate a point, that’s not transformative but the same purpose of licensing a photograph for editorial use.”

Wolff adds that Judge Hilton’s decision “should be looked at as an anomaly…I think judges in [the Eastern] District of Virginia do not understand fair use in Copyright with respect to images very well.”

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