April 26, 2019

Rebecca Burgess

Brammer v. Violent Hues: Pixsy legal partners win landmark appeal

Adams Morgan at Night by Russell Brammer - All Rights Reserved

Pixsy's network of legal partners have banded together to fight for the rights of creatives everywhere. Today Pixsy legal partners David Deal and Leichtman Law secured victory in a landmark copyright case for the photographic community, successfully appealing a controversial fair use ruling in Brammer v. Violent Hues Productions.

The Verdict

The United States Court of Appeals for the Fourth Circuit today overturned the ruling of a Virginia District Court from last year, which controversially declared Violent Hues Productions’ use of Pixsy photographer Russell Brammer’s work as fair. More on that here.The “fair use” test in United States copyright law (Title 17 U.S. Code § 107) is applied based on four factors, with the purpose and character of the use being a key consideration. (You can read more about the other factors here). Use of imagery in a commercial context does not usually pass a fair use test.

The Virginia judge set a dangerous precedent, opening up the potential for other companies to claim fair use when posting images without permission on their sites.

With this appeal decision today, Pixsy is glad to see the value of creatives' work being recognized and upheld.The Fourth Circuit referred to Kienitz v. Sconnie Nation LLC in today’s decision:

“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).”"… Violent Hues’ website did not generate direct revenue or run advertising. But Violent Hues is a limited liability company, and it used the Photo on its website to promote a for-profit film festival. On their own, these facts tend to demonstrate commercial use."

You can read the verdict in more detail here.

What Brammer v. Violent Hues means for creatives everywhere

Our legal partner David Deal explains the impact of this decision:The decision by the Fourth Circuit is extremely welcome news because it clearly and resoundingly rejects the most common arguments made by online infringers of photographs, which are the unauthorized copying was accidental or done in "good faith," or the new use was intended to portray a different message than the photographer intended. These are of course all poor arguments, but that has not stopped them from being made with increased regularity. The Brammer decision declined to accept the fair use argument that photographs displayed online are somehow different from other forms of infringement because they are plentiful and easy to copy without giving much consideration to the author's intellectual property rights.

For anyone using images online - the best way to respect a creator’s copyright is to contact them directly to seek permission and clarify terms prior to using their work.

Working together to fight for artists rights

Pixsy legal partner David Deal filed the appeal in the Fourth Circuit, and Pixsy legal partners Leichtman Law also delivered arguments to support the March 19th appeal hearing.Deal and Leichtman convinced the court that the work of creatives should be valued and their copyright upheld. They unpacked how Violent Hues Productions’ use was ultimately not fair.This victory for the creative community is a testament to the power of a network that fights for the rights of artists. What we can accomplish together to protect and enforce copyright.

Pixsy represents over 40,000 artists worldwide and stands by our mission - to ‘fight for the rights of artists’.

Rebecca Burgess

Rebecca is Pixsy’s Advocacy & Engagement Manager, raising awareness about the rights of creators and promoting the value of creative work the world over. She has previously advised on arts policy for the Australian government and researched the power of arts and culture for social change.

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