Author: Leslie Burns

First, yes, I know, I suck… I haven’t been writing often, as I had hoped to do. It’s not that I haven’t been paying attention to the legal world affecting artists. In fact, it’s the opposite as I have been pretty buried actually lawyering for them.

I have a case in litigation now that has reached the summary judgment stage. Summary judgment is sort of like trying the case but with only the judge deciding and deciding (usually) only on the papers everyone files (usually no oral argument, I mean). So, imagine covering everything that would need to be presented in a trial but in paper form… it’s a big pile of work.

I’ve been deep in drafting all the various filings for my client’s motion and those against the opposition’s. In the past few weeks I’ve written and compiled hundreds of pages, actually. That also means I’ve been doing lots of legal research. I almost feel a bit sorry for the lawyers and defendants in my other cases because, right now, I have memorized case law on point for just about every issue they could throw at me; I’m spanking their arguments like a dominatrix on Paul Giamatti’s tender bits (see Billions).

Happily, the opinion in the appeal of Brammer landed in the middle of all this. Brammer v. Violent Hues, LLC, et al is the case that terrified all photographers (and their lawyers) because the district court ruled that the totally commercial and not at all transformative website use of Brammer’s photo was transformative (yikes!) and excused under fair use (groan!). That was a bad, ugly day for photographers, especially. Just about every pro-copyright lawyer (even some who push for more fair use, generally) were slack-jawed at that opinion, though.

So, it was not unexpected (but you’re never sure about anything in the courts) that the Fourth Circuit reversed. Huzzah! Better yet, its opinion is clear and logical, going through each factor and, well, rather spanking the district court for getting it so very wrong on each point. In short, it’s very good for visual artists not only because it reversed a bad ruling, it gave us great language to use in future arguments.

I also found a Northern District of Illinois case that was similar. In late September, 2018, the court in FameFlyNet, Inc. v. Jasmine Enterprises, Inc. issued a concise opinion that also addresses whether fair use excuses copying photos–there on a “blog” portion of a commercial website. Jasmine (a seller of wedding dresses) argued that it was fair use when it ran photos of the Hilton-Rothschild wedding, photos that it didn’t license. Jasmine claimed the blog was “non-profit and educational” and that it didn’t make any money from the photos (etc.). The court wasn’t buying any of it; noting that a “news” blog on an otherwise commercial website functions as a draw for customers and thus is also commercial; that photographs of events are still creative, and that when it comes to market harm, well, allow me to quote:

On this point, it is undisputed that when a photograph is stolen, FFN loses the ability to control that photograph’s exclusivity, and that the value of a photograph is usually diminished when a photo is leaked. While this case involves a mere ” [i]solated instance[ ] of minor infringement[ ],” such instances, “when multiplied many times, become in the aggregate a major inroad on copyright that must be prevented.” Harper & Row, 471 U.S. at 566-67; accord Galvin, 130 F. Supp. 3d at 1196. As FFN notes, allowing any website to copy a photograph after it is first published would mean that a photograph could only be sold once.

FameFlyNet at 4, (some internal citations removed)

Overall, the thing about fair use is that it is so very much “each case is its own thing” so it doesn’t make too much sense getting too tweaked about it. That is, while we can get worried about cases like Cariou (still think the courts got that one very wrong), the reality is (1) each case will be looked at on its own facts; (2) courts get it right more often than wrong; and, (3) most of all, we need to remember that fair use is an exception, not the rule–while virtually every infringer yells “FAIR USE!” when first confronted, rarely is it a winner in an actual proceeding and, when it is, it’s often a close call.

The Supreme Court has decided not to review the Rentmeester v. Nike (aka “Jumpman”) case. I’m not surprised. Before I get into why, please let me say that I feel for the photographer here and I think Nike acted poorly (to say the least). It was a tough loss. However, the question of whether Nike actually infringed wasn’t a good one for SCOTUS review, I think. 

We need to remember that copyright protects the expression of an idea, not the idea itself. So, when a case is about similar images, courts have to look at the facts and do their best at interpreting facts surrounding their creation. First, they have to try and determine if the original expression is protectable, then (rather crucially here) what parts are or are not, and then whether the creator of a similar image had access to the original, and then whether that similar image is substantially similar enoughto the protectable parts to walk past the infringement line. In other words, when you don’t have straight-up copying of the photograph—I mean in the copy-paste sense—it becomes a much more complex case from the get-go. SCOTUS doesn’t generally like to review cases that turn on the facts rather than the law.

In my opinion (and yes, there are plenty of folk who will disagree with me here), the Jumpman case was decided on the facts specific to it rather than a misapplication or misunderstanding of the law, so it just wasn’t the kind that SCOTUS would generally touch. I don’t think this is the kind of case, then, that the photo community should be too up-in-arms about. Because it was so fact-specific, it’s not as likely to be duplicated in lower courts, that is, compared to a case that is decided on a wrong application or interpretation of the law (like the Brammer v. Violent Hues case pending in the 4th–where the lower court completely blew the standards for Fair Use).

So yes, this case did not turn out well for the photographer, but there are bigger issue cases out there we need to pay closer attention to, because those cases will have greater effects on the industry.

UPDATE: I forgot to mention that this case was about a motion to dismiss, not an adjudication on the merits of the whole case; in other words, the lower courts had to look at the issues above to see if dismissal was appropriate and courts dismiss cases like this only when the plaintiff hasn’t alleged enough to support a violation of the law. Here, the pose itself was not a protectable expression so that pretty much put the kybosh on the case. Photographers may not like that idea, but if we get into poses being protected (rather than how those poses are captured in an image), I think it would be impossible to make any photos of anything ever posed again.