Copyright

The last weeks of April and May have seen good news for photographers come out of the Federal Court system. On April 26, 2019, the Fourth Circuit reversed a truly awful decision on stock photography and fair use.[ref]"Fair Use is Not Designed to Protect Lazy Appropriators" Rules Court of Appeals[/ref] A little less than a week later, came another reversal, this from the 11^th Circuit Court of Appeals that broadly criticized the District Court's conclusion that "before and after" pictures taken by a Florida dentist were "not copyrightable."[ref]Pohl v. MH Sub I LLC, 2019 WL 1950003 11th Circuit Court of Appeals 2019 – Marked Do Not Publish[/ref] The District Court ruled: "Pohl's described process involves no ‘creative spark.'… To the extent he posed her for the camera, it was to tilt her head, lift her chin up or down, instruct her to smile, or to tell her to look at the camera. As for lighting, there is no creativity in merely having sufficient lighting in the room where Pohl took the photographs. He offers no evidence regarding the shading or lighting of the photographs. The photo angle involved Pohl ‘mov[ing] the camera in and out until I get it in focus,' —the most rudimentary and basic task for photographers since the era of the daguerreotype. The whole process took no more than five minutes.…In short, when viewing the before-and-after photos, no pairs of eyes on a reasonable jury can find any modicum of creativity or originality in these photographs."[ref]2018 WL 3154467 Northern District of Florida, 2018 at 4[/ref] This blog has written about the case before.[ref]Court Rules "Utilitarian Advertising" Photograph Not Protected by Copyright[/ref] Back then I wrote: "The first problem is that the Court misconstrues the concept of ‘originality.' The Copyright Act grants copyright to ‘original works of authorship fixed in any tangible medium of expression.' In this context, ‘original' does not mean that no one has ever thought of it before. It simply means "not copied from someone else." "The originality requirement does not demand that the work for which copyright protection is sought be either novel or unique; rather, originality requires ‘a work independently created by its author, one not copied from pre-existing works…'"[ref]Id. also citing Boisson v. Banian, Ltd., 273 F.3d 262, 267 (2d Cir.2001)[/ref] And I made these points:

• Plaintiff selected the model. Is this a creative choice?
• The photos are a close-up. They could have been full faced. Is this a creative choice?
• The photos are taken from the front. They could have been taken from the side. Is this a creative choice?
• In the first photograph, "Belinda" is not wearing lipstick. In the second photograph she is. Is this a creative choice meant to make the smile more attractive?
• The Court complains, "there is no creativity in merely having sufficient lighting in the room where Pohl took the photographs." I think your average photographer would disagree on this point. Lighting the room is everything.
• The Court complains, "The photo angle involved Pohl ‘mov[ing] the camera in and out until I get it in focus,' —the most rudimentary and basic task for photographers since the era of the daguerreotype. The whole process took no more than five minutes." Why does this matter? Does a sports photographer take longer than a second (if that) to focus and shoot? Does this mean that the sports photographer has no copyright?[ref]Id.[/ref]

In the opinion, the 11^th Circuit first notes that the Copyright Office granted a copyright registration to Dr. Pohl, and that this gives him a rebuttable presumption that the claim of copyright is valid.[ref]Pohl v. MH Sub I LLC, 2019 WL 1950003 at 3[/ref] Next, the Court quotes extensively the benchmark case on originality, the Supreme Court case of Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc.[ref]499 U.S. 340, 361, 111 S.Ct. 1282, 1296, 113 L.Ed.2d 358 (1991)[/ref] The Court notes that: "The Supreme Court has cautioned that it is not difficult to satisfy the originality requirement for purposes of copyright protection. (citation omitted) An author need only independently create the work (as opposed to copy it from other works) and imbue it with ‘some minimal degree of creativity.' (citation omitted) ‘To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice.' (citation omitted) And ‘[t]he vast majority of works make the grade quite easily, as they possess some creative spark, no matter how crude, humble or obvious it might be.'" (citation omitted)[ref]Pohl v. MH Sub I LLC, 2019 WL 1950003 at 4[/ref] Then, the Court cites to another case of binding precedent, its own decision in Home Legend, LLC v. Mannington Mills, Inc.[ref]784 F.3d 1404, 1409 (11th Cir. 2015)[/ref] "'[I]n Home Legend, this Court held that a digital photograph depicting 15 stained and time-work maple planks, which was created as a flooring design, was sufficiently original because the creators imagined what raw wood might look like after years of wear, and then added marks to the wood planks and digital images to render the design.' (citation omitted). That was sufficiently creative to ‘hurdle the low bar of copyrightable originality.' (citation omitted) Our decisions teach that the elements that combine to satisfy Feist's minimal ‘creative spark' standard will vary depending on the photographer's creative choices."[ref]Pohl v. MH Sub I LLC, 2019 WL 1950003 at 4[/ref] The Court deftly reaches into the deposition testimony of Dr. Pohl, to describe the creative choices made, which somehow escaped the notice of the trial court.

• Pohl testified that he took Belinda's "before" picture with her sitting in a dentist chair.
• Belinda's "after" picture was taken with her standing in front of a photography screen.
• Pohl testified that he was solely responsible for choosing what type of camera to use to take Belinda's pictures.
• Pohl testified he was solely responsible for positioning Belinda.
• In staging the picture, Dr. Pohl instructed Belinda to look directly at the camera, instead of an angled or profile perspective.
• Pohl chose to take the pictures close-up, instead of capturing Belinda's full face.
• Pohl chose to photograph Belinda smiling, instead of retracting her lips and photographing her teeth and gums only.[ref]Id. at 5[/ref]

The Court makes plain the error of the District Court by stating: "Although the district court believed Dr. Pohl's photo angle involved ‘the most rudimentary and basic task for photographers since the era of the daguerreotype,' the Supreme Court has made plain that ‘[o]riginality does not signify novelty.' (citation omitted) While Dr. Pohl may not have carefully staged Belinda and adjusted the lighting as a professional photographer might have, that is not the standard. The photographs need only possess some minimal degree of creativity. (citation omitted) And it cannot be said that Dr. Pohl's pictures are ‘slavish copies' of an underlying work." (citation omitted)[ref]Id.[/ref] Several points are worth noting.

• The Court issued the opinion without hearing any oral argument, indicating that the question was not close.
• The Court did not expressly reverse the entire decision, instead ruling that the questions of fact cited by the Court of Appeals meant summary judgment was not warranted.
• The Court of Appeals marked the decision "do not publish" which limits its ability to be cited as legal precedent.[ref]Pohl v. MH Sub I LLC, 2019 WL 1950003 [/ref]

On remand, there may be an attempt to paint the use by the Defendant as (all together now) "fair use." I do not see this argument getting very far. The photos of Dr. Pohl were appropriated by the Defendant, which then placed them on seven dental websites that were (presumably) competitors of Dr. Pohl. Unless the photographs were served up with commentary criticizing the dental work (and the opinions are silent on this issue), then the use can hardly be said to be "transformative" in any way. Indeed the photos would work towards the exact same effect that Dr. Pohl had in placing them on his website -"see what good work I do." It is also worth noting that appropriating Dr. Pohl's photos and passing them off as the work of competitors, raises unfair competition issues which are governed by the Trademark Act. So, twice in the span of days, "lazy appropriators," you've been warned against doing so. And that's something to smile about.

On April 26, 2019, the Fourth Circuit Court of Appeals handed down a complete reversal of one of the most egregiously wrong copyright decisions in recent memory.[ref]Brammer v. Violent Hues 2019 WL 1867833 Fourth District Court of Appeals 2019[/ref] The case, Brammer v. Violent Hues, was met with howls of outrage from the photographic community when the opinion of the District Court was handed down, and rightly so. At the time, I wrote: "[U]nder the Judge's reasoning, all photographs are fair game for re-use, and have less protection than other copyrighted works because they are ‘fact based.'"[ref]Court Rules Photographs are "Factual Depictions;" Copying Them Is Fair Use[/ref] and that the ruling had "the potential to seriously erode the copyright protections afforded photographers…"[ref]Id.[/ref] But friends, this is why we have Courts of Appeals (and the Supreme Court). These Courts exist to correct wrong decisions handed down by trial courts. It is worth noting at the outset, that the Court of Appeals took a little more than 5 weeks from the time of hearing oral argument to issuing a written opinion, and a unanimous decision at that. That is very fast for a Court of Appeals. It is also worth noting that while the Plaintiff photographer attracted numerous "friend of the court" briefs in support of his case, it appears that not one organization did so in support of the Defendant. Very telling. To recap the facts of the case, I will go back to my initial blog post:

• Plaintiff takes a time lapse photograph of the Washington D.C. neighborhood known as "Adams-Morgan"
• Defendant, who operates the "Northern Virginia Film Festival" copies photo off internet, crops it, and places on its website to illustrate things to do in the D.C. area
• Plaintiff sends cease and desist letter
• Defendant removes the photograph from the website
• Plaintiff sues for copyright infringement
• Defendant claims (all together now) "fair use"[ref]Id.[/ref]

The trial Court found the use was "transformative" and that overall the use by the Defendants was fair use. To which the Court of Appeals responds: "Fair use is not designed to protect lazy appropriators."[ref]Brammer v. Violent Hues 2019 WL 1867833 at 2[/ref] In turn, one might react by saying "it's about time the courts starting calling a duck a duck, instead of trying to turn it into a swan." The Court states: "We thus examine Brammer's original Photo and Violent Hues' secondary use of the Photo side-by-side… This examination shows no apparent transformation. The only obvious change Violent Hues made to the Photo's content was to crop it so as to remove negative space. This change does not alter the original with ‘new expression, meaning or message.' (Citation omitted) Rather, the cropping appears to be purely functional, giving the Photo the same dimensions as the other images on Violent Hues' website. This copying is of a kind with other non-transformative uses."[ref]Id. at 3[/ref] And, further: "Violent Hues' sole claim to transformation is that its secondary use of the Photo provided film festival attendees with "information" regarding Adams Morgan. But such a use does not necessarily create a new function or meaning that expands human thought; if this were so, virtually all illustrative uses of photography would qualify as transformative."[ref]Id. at 4[/ref] As I have noted many times in the past, the "transformative" tail tends to wag the "fair use" dog. In other words, once a Court finds a use to be "transformative," this almost always results in a finding of fair use. So, in reverse, in finding by the Court of Appeals that the use is "not transformative," the rest of the fair use argument tends to fail as well. The Court writes: "When a commercial enterprise seeks to illustrate its website, it is customary to buy licenses for use of appropriate stock imagery. (citation omitted) Brammer sold such licenses for stock use of his photos. Violent Hues never bought one of these licenses, and its stock use of the Photo was not transformative. Given that Violent Hues is a commercial enterprise and a commercial market exists for stock imagery, its failure to pay the customary fee was exploitative and weighs against fair use."[ref]Id. at 5[/ref] One of the worst parts of the initial decision was that the Defendant had acted in "good faith" in copying Plaintiff's photograph. At the time, I wrote:

• Under 17 USC 102, every work of artistic expression is protected by copyright the moment it is placed in a tangible media. In short, everything is protected by copyright, unless and until the time that the author disclaims it.
• There is no such thing as "potentially be copyrighted." If it's in a tangible media, it's copyrighted.
• Under 17 USC 401, there is no requirement that an author place copyright notice on his work.
• Nowhere in 17 USC 107 do the words "good faith" appear in describing the parameters of fair use.[ref]Court Rules Photographs are "Factual Depictions;" Copying Them Is Fair Use[/ref]

It turns out I was correct. The Court holds: ""[W]hile bad faith may weigh against fair use, a copyist's good faith cannot weigh in favor of fair use."[ref]Brammer v. Violent Hues 2019 WL 1867833 at 5 (citation omitted)[/ref] And: "Whatever relevance good faith has to the fair use inquiry, Violent Hues has not offered any evidence that it acted in good faith. At best, Violent Hues appears to have acted negligently. Violent Hues' owner, Fernando Mico, stated that he believed the Photo was freely available. But contrary to Violent Hues' suggestion, this does not end the matter. For Mico did not explain why this belief was reasonable given that all contemporary photographs are presumptively under copyright…"[ref]Id. at 6[/ref] As to the second fair use factor, the Court finds the Plaintiff work to be commercial and highly expressive. "In taking the photograph at issue here, Brammer made many creative choices. He alleges that he set up at a ‘private, rooftop location' and ‘experimented with numerous shutter speed and aperture combinations.' The resulting Photo is a stylized image, with vivid colors and a bird's-eye view. Notably, the vehicle traffic appears as streaks of light. The Photo's subject may be a real-world location, but that location does not, in reality, appear as shown. This creativity entitles the Photo to thick copyright protection. Although Brammer could not prevent others from taking night-time photographs of Adams Morgan, he surely can assert his rights in his own expression of that scene."[ref]Id. at 7[/ref] While I can appreciate the Court's ruling here, I fear that some will take the opposite to be true, namely that capturing a moment, in a split second of time, will somehow merit less protection than a carefully staged scene as is present here. The Court cautions against this interpretation: "As a basic matter, photographs are ‘generally viewed as creative, aesthetic expressions of a scene or image' and have long received thick copyright protection. (citation omitted) This is so even though photographs capture images of reality. (citation omitted) (‘Simply because a photo documents an event does not turn a pictorial representation into a factual recitation .... Photos that we now regard as iconic often document an event — whether the flight of the Wright Brothers' airplane, the sailor's kiss in Times Square on V–J Day, the first landing on the moon, or the fall of the Berlin Wall.')"[ref]Id. at 6[/ref] (emphasis added). In cleaning up, the Court quickly finds that the Defendant took not only a large portion of the work, but took the "heart" of the work as well. "Here, Violent Hues used roughly half of the Photo. Moreover, Violent Hues merely removed the negative space and kept the most expressive features, which constituted the ‘heart of the work.'(citation omitted) Given that Violent Hues' use was non-transformative, this considerable taking was not justified.(citation omitted) (‘A secondary author is not necessarily at liberty to make wholesale takings of the original author's expression merely because of how well the original author's expression would convey the secondary author's different message.'). Violent Hues could just as easily have accomplished its goal of depicting Adams Morgan by taking its own photograph or finding an image under free license. The third factor thus weighs against fair use."[ref]Id. at 7[/ref] (emphasis added) As to the fourth and final factor, Defendant advances the incredible proposition that the Plaintiff suffered no market harm because he was able to license the photo after Defendant's infringing use. The Court is not buying this argument either: "Violent Hues made commercial use of the Photo and duplicated the heart of the work by copying the Photo's most expressive features. Brammer thus need not demonstrate that the licensing market for his Photo would be depressed should Violent Hues' behavior become widespread… Indeed, if Violent Hues' behavior became common and acceptable, the licensing market for Brammer's work specifically, and professional photography more broadly, might well be dampened… If the mere fact of subsequent sales served to defeat a claim of market harm, then commercially successful works could hardly ever satisfy this factor. Like the others, the fourth factor weighs against fair use."[ref]Id. at 8[/ref] (emphasis added) Back when the initial decision was released, I wrote in my blog post: "Here, the Defendants copied the photograph off the internet, cropped it and placed it on their website. There is no commentary. There is no criticism. Defendants use adds no additional meaning. It adds no additional expression."[ref]Court Rules Photographs are "Factual Depictions;" Copying Them Is Fair Use[/ref] The Fourth Circuit agrees with this, holding: "Violent Hues' ‘informational' use of the Photo as a stock image does not further this intellectual objective because Violent Hues said nothing new through this use. Instead, allowance of Violent Hues' defense would frustrate copyright's central goal. If the ordinary commercial use of stock photography constituted fair use, professional photographers would have little financial incentive to produce their work."[ref]Brammer v. Violent Hues 2019 WL 1867833 at 8[/ref] Nice to know that a Court of Appeals finally got it right in the race to declare everything a "transformative" use. And thanks to Russell Brammer for taking a stand here. The photographers of the U.S. are much better off with this important decision in hand. Now, for all you "lazy appropriators" out there, well, you've been warned.