United States District Court, E.D. Virginia, Alexandria Division
M. HILTON, UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Defendant Violent Hues
Productions, LLC's Motion for Summary Judgment. Plaintiff
Russell Brammer, a photographer, initiated this suit claiming
that Violent Hues infringed his copyright by using a
photograph on Violent Hues' website which Brammer had
captured and posted online.
took the photograph at issue in this case in November of
2011. The photo is a time-lapse depiction of the Adams Morgan
neighborhood of Washington, D.C., at night. Brammer posted
this photo on several online image-sharing websites as well
as his personal website. He applied for a copyright
registration in September 2016, which was granted in July
Hues organizes an annual film festival, the "Northern
Virginia Film Festival." In 2014, Violet Hues created a
website intended to be used as a reference guide providing
information about the local area for filmmakers and other
attendees of the festival. The website provides information
about lodging, transportation, and things to do in the
Northern Virginia/Washington D.C. area.
2016, Violent Hues posted a cropped version of Brammer's
photo on its website. Violent Hues' owner, Fernando Mico,
found the photo online. He alleges that he saw no indication
that the photo was copyrighted and believed he was making use
of a publically available photograph. Brammer's attorney
sent Violent Hues a demand letter in February 2017, after
which Violent Hues immediately removed the photo from its
brought two claims against Violent Hues. The first, Count I,
was for copyright infringement, under 17 U.S.C. §
504(b). The second claim, Count II, was for removal and
alteration of copyright management information, under 17
U.S.C. § 1202, asserting that Violent Hues intentionally
removed Brammer's copyright information from the photo
before using it on its website and provided its own false
copyright information for the photo. Despite raising this
second claim in his Complaint, Brammer did not respond to
Violent Hues' arguments regarding Count II either in his
opposition to Violent Hues' Motion for Summary Judgment
or during oral arguments at the hearing on that motion. The
Court therefore finds that Plaintiff has abandoned Count II.
regard to Count I, Violent Hues argues that summary judgment
should be granted in its favor because its use of the photo
was fair use and therefore not infringement. See
Bouchat v. Balt. Ravens Ltd. P'ship, 737
F.3d 932, 937 (4th Cir. 2013) (holding that "[a] finding
of fair use is a complete defense to an infringement
claim"). There are four factors that the Court must
consider to determine whether a particular use is a fair use:
(1) the purpose and character of the use, including whether
such use is of a commercial nature . . .; (2) the nature of
the copyrighted work; (3) the amount and substantiality of
the portion used in relation to the copyrighted work as a
whole; and (4) the effect of the use upon the potential
market for or value of the copyrighted work.
17 U.S.C. § 107. Considering each of these factors, the
Court finds that Violent Hues' use of the photo was a
fair use, and therefore did not constitute infringement.
examining the first factor, the purpose and character of the
use, Fourth Circuit precedent provides two related factors
for the court to consider: (1) "whether the new work is
transformative, " and (2) "the extent to which the
use serves a commercial purpose." Bouchat, 737
F.3d at 939. The Fourth Circuit has held that "[t]he use
of a copyrighted work need not alter or augment the work to
be transformative. Rather, it can be transformative in
function or purpose without altering or actually adding to
the original work." A.V. ex rel. Vanderhye v.
iParadigms, LLC, 562 F.3d 630, 639 (4th Cir. 2009).
Violent Hues' use of the photograph was transformative in
function and purpose. While Brammer's purpose in
capturing and publishing the photograph was promotional and
expressive, Violent Hues' purpose in using the photograph
was informational: to provide festival attendees with
information regarding the local area. Furthermore, this use
was noncommercial, because the photo was not used to
advertise a product or generate revenue.
addition to being transformative and non-commercial, Violent
Hues' use of the photo was also in good faith. The record
indicates that Mr. Mico, Violent Hues' owner, found the
photo online and saw no indication that it was copyrighted.
Mr. Mico attests that he thus believed the photo was
publically available. This good faith is further confirmed by
the fact that as soon as Violent Hues learned that the photo
may potentially be copyrighted, it removed the photo from its
to the second fair use factor, the nature of the copyrighted
work here also favors a finding of fair use.
"'[F]air use is more likely to be found in factual
works than in fictional works, ' whereas 'a use is
less likely to be deemed fair when the copyrighted work is a
creative product.'" Vanderhye, 562 F.3d at
640 (quoting Stewart v. Abend, 495 U.S. 207, 237
(1990)). "However, if the disputed use of the
copyrighted work 'is not related to its mode of
expression but rather to its historical facts, ' then the
creative nature of the work is mitigated." Id.
(quoting Bond v. Blum, 317 F.3d 385, 396 (4th Cir.
photograph in question contained creative elements (such as
lighting and shutter speed choices) but was also a factual
depiction of a real-world location: the Adams Morgan
neighborhood in Washington, D.C. Violent Hues' used the
photo purely for its factual ...