Article by Clyde Shuman
The U.S. Court of Appeals for the Fourth Circuit ruled on Friday that “good faith” is not a defense to copyright infringement, reversing a district court’s grant of summary judgment to defendant and remanding the case for further proceedings consistent with the appellate court’s decision.
In Russell Brammer v. Violent Hues Productions LLC, case number 18-1763, plaintiff/appellant Brammer was a commercial photographer who licensing his work as stock photography. He published a digital copy of the photograph at issue—depicting a busy neighborhood street in Washington, D.C., on his personal website, and also uploaded the image to Flickr, including a copyright notice. The president of defendant/appellee Violent Hues, a film production company, subsequently posted the photo on one of the company’s websites, which promoted a regional International Film and Music Festival, a revenue-generating event. On a page highlighting places to visit during the festival, the site included a cropped version of Brammer’s photo above a caption identifying the neighborhood, without any attribution or other commentary. The company removed the photo from its website, but did not compensate Brammer for the unauthorized use. Brammer sued for copyright infringement, and the film company asserted a “fair use” defense.
The district court agreed with the film company, granting summary judgment in a decision heavily criticized by copyright law experts. The district court said the festival’s use of Brammer’s photo was fair use because, inter alia it used the image in “good faith.” The festival organizers had claimed they “saw no indication that [the image] was copyrighted.” (Note that copyright infringement is a strict liability tort; intent is not an element of the claim, and not a defense.)
On appeal, the Fourth Circuit agreed with Brammer, ruling that the organizers of the festival were not protected by the fair use doctrine when lifted Brammer’s photograph of a Washington, D.C., street scene from the internet, to promote their festival. The Court found that the festival did not comment on the photo, or promote it or otherwise alter it in any way. “What [they] did was publish a tourism guide for a commercial event and include the photo to make the end product more visually interesting. Such a use would not constitute fair use when done in print, and it does not constitute fair use on the Internet.”
The Court avoided a blanket ruling on the issue of “good faith” as a defense to copyright infringement, noting that there was no evidence of good faith on the part of the festival company, to begin with. According to the Court, “Whatever relevance good faith has to the fair use inquiry, Violent Hues has not offered any evidence that it acted in good faith.” Although the festival owner claimed to believe the photo was freely available, he “did not explain why this belief was reasonable given that all contemporary photographs are presumptively under copyright … and given his own acknowledgment that he downloaded the Photo from Flickr, which stated “© All rights reserved” in the photo caption.”
The Court distinguished the instant case from the use of social media sites that are “specifically designed for the participatory 'sharing.'” Per the Court,
We reach our conclusion with the recognition that the internet has made copying as easy as a few clicks of a button and that much of this copying serves copyright’s objectives. Many social media platforms like Twitter, Facebook, and Instagram are specifically designed for the participatory “sharing” — or copying — of content. We express no opinion as to whether such sharing constitutes fair use. We note, however, that Violent Hues’ use is not of this kind.