Photographer Russell Brammer sued Violent Hues Productions for copyright infringement after the company used a copy of Brammer’s photograph on a website promoting its film festival, without permission. In June 2018, the U.S. District Court for the Eastern District of Virginia, on a motion for summary judgment, found in favor of Violent Hues, stating that the use constituted fair use. Brammer appealed to the U.S. Court of Appeals for the Fourth Circuit, arguing that the district court made both legal and factual errors in granting the motion and applying the fair use factors.
On April 26, the Fourth Circuit reversed the district court decision. The court held that Violent Hues’ copying was not transformative because it made only minimal changes to Brammer’s photo’s context and content. It also held that the use was commercial; that Violent Hues’ claim of good faith does not aid its fair use defense; the district court erred in finding the published status of the photo weighed in favor of fair use; the third factor weighed against fair use because Violent Hues copied roughly half of the photo, and the portion taken constituted the “heart” of the work; and the taking would cause market harm.