Journalists who have covered wars are well aware of the cliche’ “First reports are always wrong”.  Porgy and Bess put it this way, “It ain’t necessarily so.” Those two old sayings recently came to mind when we read the court decision that was recently headlined and clickbaited in various ways as “Photos on the Internet are now Fair Use” relating to the case of photographer Russell Brammer v. Violent Hues Productions. Near hysterics broke out among photographers and online “IP experts” otherwise known as people with a keyboard. As with many media reports, key elements were omitted. So let’s settle down now, allow us to dissect this case, and take a calm view of this strange ruling.

Ed never, ever, like never comments on a case written up in the media unless he has read all of the relevant court papers – which we have done here.  In this court case that meant reading some 150+ pages of legal memos, affidavits, exhibits, depositions, indeed all of the papers that the Federal Court judge in Virginia read before rendering a decision which appears to so many online to be an “outlier” and utterly inconsistent with established copyright law.

The case concerns the applicability of the “fair use” defense. While the fact pattern appears simple the backstory is not. You can Google this case and get what facts have been presented in the media. And if you want a deeper explanation from us, you can read a blog piece we previously wrote titled “The Alleged Educational Fair Use Defense”

But for those of you who are too lazy to hunt down the articles, here is the “Cliff Notes version” of just the bare facts in this case:

1. Russell Brammer (the photographer) creates a timelapse photo of a Washington DC neighborhood.
2. Defendant, Northern Virginia Film Festival, without obtaining a license from Brammer copies the photo off the Internet, crops it and employs it in a website advertising/promoting/marketing DC events;
3. A cease and desist letter is sent on behalf of Brammer and the photo(s) are taken down.
4. Brammer sues for copyright infringement and the Film Festival asserts a Fair Use defense. (For a deeper explanation of “Fair Use” read our articles on the Fair Use test here and here.)
5.  Inexplicably (to the casual observer) defendant wins and plaintiff’s case is dismissed with the apparent effect of saying copying and cropping original images can constitute fair use and thus its open season on creators.

End of story? Is this case reason enough for creators to start drinking adult beverages in large quantities? Sometimes that’s not bad idea, but not necessary because of this case. What’s been reported about this case, while all true and factual, is missing a bunch of information.

Here is the critical information NOT referenced by others:

1. Brammer was a client of the search firm “Pixsy”.  Brammer’s attorney was/is defined in court papers as a “legal partner” of Pixsy. (As an aside, such a description raises all sorts of ethical questions, as Pixsy is not a law firm but rather a company that selected Mr. Brammer’s attorney for him)
2. Brammer’s at Pixsy’s request (and need in order to file suit) filed the copyright registration well after the infringement and it appears from the court papers, after delays;
3. Pixsy’s “resolution team” (that sounds like a football squad to us) had attempted to settle the case prior to the retention of an attorney;
4. Pixsy and Mr. Brammer’s assigned attorney, one David Deal, apparently worked together in this matter and the legal retainer agreement is NOT just by and between the client and the attorney (as is typical) but rather Pixsy was “acting as (Brammer’s) licensing agent in connection with (legal) representation”.

The retainer agreement is in the court papers and a public record. According to the court documents filed, Mr. Deal would get 25% of any money recovered before a court filing of a lawsuit. He would also get 35% of the gross of any money recovered after the filing of a lawsuit. We see that as all fine and dandy.

What is not stated in the papers anywhere, and what raises our eyebrows, is the question: what does Pixsy get? If Brammer prevailed, what would have been Pixsy’s share? From our understanding of Pixsy’s terms, and we’re more than happy to be corrected if we’re wrong here, is that if you use Pixsy’s search function, as is the case here, they found this infringement, they collect 50% of any recovery. That includes if they find an infringement and you hire your own lawyer at your expense. In this case, because Pixsy used their lawyer, Mr. Brammer does not have to pay Mr. Deal anything, Pixsy covers his fees.

In summary from our understanding it’s likely if Mr. Brammer was successful in this case, his lawyer would get 35% of the judgment, Pixsy would get 50%, and that according to our math, leaves 15% of the recovery to the photographer. At least that’s our understanding and assumption; we will stand corrected if we hear that we’re wrong. There is nothing in the court papers that address what Pixsy’s share would have been if Brammer was successful.

Now paramount to anyone’s understanding of any case when a decision or judgment is made by a judge and no trial or hearing has taken place – as in this matter – is just what has the judge examined in coming to a decision.  A judge must make a decision (or refuse to do so) based solely on what the respective attorneys have placed before the court. Those materials include any relevant legal citations, memos of law, briefs, affidavits from people with knowledge of the circumstances, exhibits, depositions and other written materials submitted by the lawyers.  The judge is (save rare occasions) constrained to rule based on only the materials provided by the attorneys to the court.

To illustrate, here is what the judge said regarding one issue in this case: “Nothing in the record controverts this description. Because Plaintiff chose to conduct no depositions to probe this question and asked no interrogatories relating to this claim, he cannot dispute the fact that Violent Hues’ use of the footer had nothing to do with the Photo. Plaintiff likewise fails to muster any evidence to support a § 1202(b) claim for removal of copyright management information. Plaintiff conducted no discovery related to this claim, and in fact admitted that the Photo did not contain any copyright management information.”

In short, if a lawyer doesn’t defend or address an issue, there is no issue. It is not a judge’s job to represent a client or fill in information which has not been included for consideration. As stated in many cases “A party’s failure to raise or discuss an issue in his brief is to be deemed an abandonment of that issue.”

In this case the defendant’s attorneys wisely used the plaintiff’s connections to Pixsy against him.  Mr. Brammer was questioned at his deposition about his relationship to Pixsy.  A $750 Pixsy licensing fee is addressed, as are free uses of the photo on Smug Mug and Flickr. The testimony of Mr. Brammer about the late registration of one image and not of others while used on social media sites establishes the defendant’s position that Mr. Brammer intended the images to be used by others and (also) that no registrations were filed. In sum, the transcript of the deposition was a powerful exhibit for the defense.

IMPORTANT:  We are not saying that the testimony did or did not express Mr. Brammer’s real intentions BUT the deposition transcript submitted to the judge by the defendant’s attorney clearly reads in a manner favorable to the defendant. Perhaps it is a case of perception over reality but to an objective judge or copyright expert the transcript taken on its own is quite clear and works against the photographer…big time.

In sheer volume and targeting of relevant issues the defendant’s papers are clearly more precise and convincing than those of the plaintiff.  The documents establish that no money was made by the alleged non-commercial infringement and that plaintiff’s claims were not set forth with the required specificity or at all. Evidence typically required to rebut a defense of fair use submitted by the plaintiff was inadequate and therefore the judge was virtually required to side with the defendant. A judge can only rule on what’s presented to the court.

In the end, rest easy dear reader, as this case is very unlikely to set any precedent at all. This is not an appellate decision. In the unlikely event that Pixsy and/or Mr. Brammer pays for an expensive appeal, it is Ed’s view that the odds of success in reversing are not high. The appeals judges simply review whether this judge made a legal error based on the papers submitted to the lower court.

Attorney Steven Carlisle of Southeastern Nova Law School opines that, ” The Court proceeds to ignore key components of the Copyright Act, disregards readily apparent facts, and once again totally botches the “transformative use” test. In reading the opinion, I wondered if this was the same Eastern District of Virginia judge that botched the fair use test in Philpot v. Media Research Center.  Nope, but clearly something is wrong in that division of the Federal Judiciary. Because, just like the Court in Philpot, it holds that taking an artistic photograph and placing it in an (allegedly) informational context, is a transformative use”.

We agree with him on the law. However that which is obvious to many of us who practice in this area would not be obvious based on the papers submitted to the judge in this case. Perhaps Mr. Carlisle is correct on his other points, perhaps he has (like we have) read ALL of the papers submitted to the court. Perhaps an appeal will toss this decision, which is in our judgment is blatantly incorrect but was arrived at in a rather understandable manner.  If appealed and upheld THEN this case will take on increased meaning and obtain some degree of precedence for future cases. But don’t hold your breath for that to happen.

Until and unless this case takes on the power of being decided by a higher court it stands as an anomaly or outlier to the usual application of the fair use defense. Though Ed well knows how to both attack and support a fair use defense and believes that the requirements to employ the test were NOT MET here, he completely understands why the judge decided the case the way he did.  A moderately sophisticated IP lawyer reading both sets of papers will likely find him/herself sympathetic to the decision although it is dead wrong.  We strongly suggest that any attorney seeking to comment on this case read the entire court file. 

So for those of you who skipped our wonderful insights into this case and jumped to the bottom to get the summary, here it is:

Lessons learned-

1. This aberrational decision will likely have little or no effect on similar cases nationwide. So sleep easy, this is not a free pass for companies to steal images that appear on the Internet.
2. Register your work prior to posting on any Social Media, like Facebook, Instagram, 500px, Flickr, SmugMug, ANY SOCIAL MEDIA. We talk about registering your images until we’re blue in the face, hence our logo.
3. Consult with and if necessary, retain an attorney who will represent your interest only.
4. Beware and be aware of the actions and requirements of search firms in infringement matters. Read the fine print in their terms. Best if you control your own destiny.
5. Lastly, don’t believe all the “experts” online and in the comment sections of websites. Actually knowing something, really knowing all the facts of the case, and the art of convincing a court that you are indeed correct, are two distinctly different things.

UPDATE:  The attorney for Mr. Brammer, David Deal, has expressed his intent to appeal the decision. Whether an actual, full blown appeal is actually filed and argued before a Circuit Court remains to be seen. Often a losing party will express an intention to appeal an adverse decision and may file a formal legal document with the court(s) expressing that intention.  Nevertheless, it is quite common that no appeal is ever heard by the appellate court as the intention is not converted to drafting, filing and arguing an actual appeal.  There are many reasons for a scenario to occur including but not limited to, the parties reaching a settlement in order to avoid the costs of an appeal.

In this case, if an appeal is heard by an appellate court, we would hope that relevant information not contained or seen by Judge Hilton might find its way into the appeal and is thus seen by a panel of appellate judges.  Technically, that is not supposed to occur but in real life such materials not seen by the “original” judge often find their way to the eyes of the appellate judges via (among other things) clever lawyering.

We sincerely hope that IF indeed a full appeal of the decision is heard, the Circuit will toss it out as it is clearly wrong on the facts and the law.  In such event it is almost as if the original decision was never made.  If on the other hand, the decision is upheld, it is our opinion that there will be harsh consequences to creators and authors in the future as a case which as of today is an outlier will take on the power of a Circuit Court decision thus giving it value to use as “ammunition” by other infringers in similar scenarios.

ANOTHER UPDATE: As we thought the Fourth Circuit Court of Appeals did toss it and reversed the decision.