If you read the first part of this two-part post on some bizarre copyright decisions emanating from federal courts in 2018, you know I left you with a cliffhanger. Copyright law was seemingly turned on its head when a federal court judge in New York declared that embedding tweets with photos could be considered direct infringement of a copyright owner’s display right in those photos. Or did it?

Judge Katherine Forrest asserted that her decision would not prove as consequential in fact as many feared because defendants facing liability after embedding tweets in their websites might still have many defenses at their disposal.

I surprised myself by eventually agreeing with that position, based on two fair use cases that were also decided this year.

The first case is Philpot v. Media Research Center. Decided on Jan. 8 by Judge T.S. Ellis III, it involved photos taken by professional photographer Larry Philpot. Both were concert photos of famous musicians engaged in performance: Kenny Chesney and Kid Rock. They were each uploaded to the Wikimedia website where they were made available via a Creative Commons attribution license, version 3.0. That license allows free use of the photos but requires attribution to the original photographer. The photos were published by the Media Research Center, a 501(c)(3) non-profit that “publishes news and commentary regarding issues of public debate in order to expose media bias against American Judeo-Christian religious beliefs.” The Chesney photo was published as part of an article titled “8 A-List Celebrities That Are Pro-Life” while the Kid Rock photo was published in an article titled “Kid Rock Announces 2018 U.S. Senate Bid.”

Neither photo contained the required attribution to photographer Larry Philpot; as a result, they fell outside the scope of the terms and conditions of the Creative Commons 3.0 license (although this post focuses on fair use, I’d be remiss if I didn’t stress the fact that it is of the utmost importance to read all the terms and conditions of a Creative Commons or other license and follow them to the last detail). Because it didn’t have permission to use the photos, the Media Research Center raised several defenses, including fair use.

For those who aren’t already familiar, fair use is a doctrine under the Copyright Act that provides certain uses of copyrighted works are “not an infringement.” While this language suggests that the plaintiff bears the burden of proof in demonstrating that a particular use is not “fair use,” most courts have treated fair use as an affirmative defense and placed the burden of proof on the defendant to show that a use was fair. Fair use claims are resolved by analyzing four non-exclusive factors:

  • “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes”;
  • “the nature of the copyrighted work”;
  • “the amount and substantiality of the portion used in relation to the copyrighted work as a whole”; and
  • “the effect of the use on the potential market for or the value of the copyrighted work.”

Judge Ellis focused – as most do – on the first and fourth factors, concluding that the Media Research Center’s use of these photos in this way was “fair.” Among the high points of his decision are:

  • The use of both the Chesney and Kid Rock photos was noncommercial and transformative because “[t]he undisputed factual record discloses that the ‘expression,’ ‘meaning,’ and ‘message’ of defendants use of the photographs here is plainly different from plaintiff’s intended use of the photographs.” Philpot, a professional photographer of musicians, took these photos to depict Chesney and Kid Rock in concert. By contrast, the Media Research Center used the photos for purposes of news and commentary; in fact, these photos were surrounded by content and commentary unrelated to the musicians performing in concert. Judge Ellis found that “because defendant used the Chesney and Kid Rock photographs in a new context, to tell new stories about the musicians as pro-life advocates or candidates for office, defendant’s use of the photographs was transformative.” Further, there was only nominal commercial gain commercial because the Media Research Center only received a small amount of revenue in connection with these stories (about $26 from advertising on those pages and maybe $50 in donations through related links).
  • Regarding “the nature of the work factor,” the original Philpot photos were both factual and creative, so this factor did not favor either party.
  • Because the Media Research Center used all of one photo and almost all of the other, the “amount and substantiality” factor pointed against fair use.
  • There was no detrimental effect on the economic market for these photos because Philpot never intended to sell the photos (as evidenced by his posting them to Wikimedia) and, in fact, had not received any revenue from them. Further, “[a]ny speculative economic effects on the future economic market for plaintiff’s Chesney and Kid Rock Photographs owing to a lack of attribution do not outweigh the lack of direct economic effects and defendant’s general non-commercial use of the Photographs.”

Judge Claude Hilton applied a similar analysis in his June 11 decision in Brammer v. Violent Hues Productions, LLC. In that case, a photographer posted his time-lapse photo of the Adams Morgan neighborhood in Washington, D.C. at night on several sharing sites and his own personal website. He applied for copyright registration in September 2016 and was granted that registration in July 2017, after the photo was used by Violent Hues on a website promoting the Northern Virginia Film Festival in 2016. Brammer sued, and Violent Hues raised fair use as a defense.

Like Judge Ellis, Judge Hilton ruled in favor of the defendant. Key aspects of his ruling include:

  • Though Brammer’s purpose in taking the photo was expressive, Violent Hues’ use of the photo was informational (to provide festival attendees with information about the local area) and non-commercial (because it was not used to raise revenue or advertise a product or service). Further, Violent Hues acted in good faith because its owner found the photo online and had no indication that it was copyrighted before using it.
  • While the original photo included both factual and fictional elements, it was used in a more factual than fictional way in nature, which lessens the creative nature of the work. Although the photo contained creative elements, it basically was a representation of the Adams Morgan neighborhood and was presented by Violent Hues as such.
  • The third factor – the amount of the work used in relation to the whole – also favors Violent Hues because the defendant cropped the original photo to about half its original size. Violent Hues “used no more of the photo than was necessary to convey the photo’s factual content and effectuate Violent Hues’ informational purpose.
  • Finally, use of the photo had no real effect on the market for the photograph. Brammer testified to only six sales or paid licenses of the photo, two of which occurred after Violent Hues posted the photo. In addition, Violent Hues itself didn’t sell copies of or otherwise generate revenue from the photo. These cases – Brammer v. Violent Hues in particular – also fit the “Twilight Zone” theme because I believe they apply fair use more broadly than in many other cases. For instance: The idea that simply using a photo for a purpose other than the photographer’s original intent goes beyond what I would previously have considered “transformative” and unilaterally grants the right to a user to determine when payment should and should not be made. Further, the simple fact that revenue has not been raised can also be determinative even though, in many news instances, there is little ability to directly tie revenue to use of a photo.
  • Finally, the classification of the use of Brammer photo of Adams Morgan as “factual” in nature and therefore not distinctly commercial, is a bit incredible. By that definition, any photo of a real place or person is factual in nature. However, this photo in particular, however, demonstrates that’s just not true. It’s a creative representation of Adams Morgan which required significant planning and execution, making it distinct from a simple “point and shoot” photo of the same neighborhood.

News organizations and other content users will welcome these two decisions, especially in light of the Goldman v. Breitbart embedding decision we wrote about last week. After all, applying Philpot v. Media Research Center and Brammer v. Violent Hues to the Tom Brady photo seems to indicate that the Breitbart defendants might have a strong claim of fair use. That photo was used in a new context without any direct revenue attached; it was not originally taken for a commercial purpose (as evidenced by its posting to a Snapchat story); and there seemed to be no actual or intended economic market for the photo (given that it was never offered for sale or license and, in fact, was intended to disappear after 24 hours).

It is important to remember that these decisions are all limited to their respective jurisdictions – the Southern District of New York and the Eastern District of Virginia – and don’t formally create precedent elsewhere. I suspect, however, that we may see the Server Test v. Incorporation Test issue from Goldman v. Breitbart again in higher courts – perhaps even the Highest Court in the Land – at some point. Thus, it is still possible that these seemingly alternative interpretations of the legal impact of embedding and the scope of fair use stay in The Twilight Zone and never become reality.