## Facts

- Russell Brammer, a commercial stock photographer, created and owned the copyright in a nighttime long-exposure photograph titled “Adams Morgan at Night.”
- Brammer posted the photograph online with a copyright notice and monetized it by selling prints and licensing the image for online use.
- Violent Hues Productions, LLC, promoted a for-profit film festival through a commercial website.
- Violent Hues’ owner found the photograph online, copied it without permission, cropped it to remove some negative space, and displayed it on the website as part of a page describing nearby tourist attractions.
- Violent Hues did not credit Brammer and did not pay a licensing fee.
- After Brammer demanded compensation, Violent Hues removed the image but refused to pay, asserting a belief that the image was freely available online.

## Issues

1. Whether Violent Hues’ reproduction and display of Brammer’s copyrighted photograph on its commercial website constituted fair use under 17 U.S.C. § 107.
2. Whether the use was “transformative” when the photograph was used in an informational website context with only cropping changes.
3. Whether the use harmed the potential licensing market for the photograph.

## Decision

- The Fourth Circuit reversed the district court’s summary judgment for Violent Hues and remanded.
- The court held that none of the four statutory fair use factors favored Violent Hues.
- The court concluded the use was non-transformative and commercial, copied a substantial and qualitatively important portion of a creative photograph, and threatened the photographer’s licensing market.

## Legal Principles

- A use is transformative only if it adds new expression, meaning, or message; placing a work in a new online context, without materially changing content or purpose, is generally not transformative.
- Commercial use weighs against fair use, particularly when the defendant uses the copyrighted work to promote a for-profit venture.
- A defendant’s subjective “good faith” belief that a work is free to use online does not weigh in favor of fair use.
- Creative photographs reflecting artistic choices receive strong protection; publication status does not materially reduce that protection in the fair-use analysis.
- The “amount and substantiality” factor considers qualitative taking; copying the “heart” of a work weighs against fair use, especially where the use is non-transformative.
- Market-effect analysis considers harm to existing and potential licensing markets and the likely impact if similar unauthorized uses became widespread.

## Conclusion

The Fourth Circuit held that a film-festival promoter’s unlicensed, non-transformative display of a copyrighted stock photograph on a commercial website was not fair use under § 107, reversed summary judgment for the defendant, and remanded for further proceedings.


Brammer v. Violent Hues Prods., LLC, 922 F.3d 255 (4th Cir. 2019)