District court finds online use of copyrighted photograph of Adams Morgan neighborhood of Washington, D.C. for informational purposes constitutes fair use, granting summary judgment in defendant’s favor.

Plaintiff, photographer Russel Brammer, brought suit against defendant Violent Hues for infringing his copyright in a photograph Violent Hues posted on its website.  Brammer’s photograph was a time-lapse depiction of the Adams Morgan neighborhood of Washington, D.C., at night.  Violent Hues used the photograph on their website to provide information about things to do in the Washington, D.C. area, where it was organizing a film festival.  The court granted Violent Hues’ motion for summary judgment on its defense of fair use. 

As to the first factor – the purpose and character of the use and whether it is of a commercial nature – the court found Violent Hues used the photograph for a different purpose than Brammer.  Brammer’s purpose in publishing the photograph was promotional and expressive, while Violent Hues used the photo in order to provide information about the Adams Morgan neighborhood to festival attendees and not to promote any product or service.  The court also found that Violent Hues had used the photograph in good faith, based on the fact that it removed the photo from its website as soon as it learned the photo might be copyrighted.

The second factor – the nature of the copyrighted work – favored fair used because the photograph was a factual depiction of a real-world location, and fair use is more likely to be found in the case of factual works than in fictional works.  Additionally, the photograph had previously been published on several websites without any indication that it was copyrighted.

Looking to the third fair use factor – the amount and substantiality of the portion used in relation to the copyrighted work as a whole – the court noted that Violent Hues used only approximately half of the original photo, which was no more than was necessary to convey the photo’s factual content.  This weighed in favor of finding fair use.

Finally, concerning the fourth factor – the effect of the use upon the potential market for or value of the copyrighted work – the court found no evidence that Violent Hues’ use of the photo had any effect on the potential market for the photo.  In fact, Brammer still made sales of the photograph after Violent Hues’ alleged infringement began, and he admitted that he made no effort to market the photo.

The court also dismissed Brammer’s claim that Violent Hues had removed and altered “copyright management information” by removing Brammer’s copyright information from the photo and providing its own copyright information for the photo, because Brammer did not defend that claim in his summary judgment opposition.