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Fourth Circuit Rules that Website's Unauthorized Posting of Stock Photograph Was Not 'Fair Use'
Hundreds of millions of photographs are posted online every day. As the U.S. Court of Appeals for the Fourth Circuit recently noted, "the Internet has made copying as easy as a few clicks of a button," and users frequently copy photographs for business or social purposes. When doing so, users should be aware of the risk of liability for copyright infringement. The Fourth Circuit's decision in Brammer v. Violent Hues, No. 18-1763 (Fourth Cir. April 2019), sheds some light on when re-posting will be a "fair use" and when it will give rise to liability.
As the Brammer decision demonstrates, whether a use is "fair" can be a complex question. Based on the particular facts of the case, the court ruled that the re-posting of a stock photograph did not constitute fair use. The opinion gives guidance to those creating and re-using online photographs, but also leaves some gray areas.
Background to Brammer v. Violent Hues
Brammer involved a professional photographer who licensed his photographs as stock images. He posted his photographs online and others would pay for print copies, or to license the pictures to use online or in print media. In 2011, he shot a stylized image of the Adams Morgan neighborhood in Washington, DC. Taken from a rooftop at night, the picture showed moving vehicles as red and white streaks of light, creating a vibrant, colorful image. The plaintiff posted the picture on his website and also on Flickr, a photo-sharing site. Some users bought physical prints of the photograph, and two users bought licenses to use the picture online.
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