On April 26, 2019, the Fourth Circuit overturned a ruling that a Virginia film festival could use a copyrighted image for free because it did so in “good faith,” saying such an outcome would “frustrate copyright’s central goal.”

The Fourth Circuit reversed a ruling in favor of defendant in connection with a case brought by photographer Russell Brammer (“Brammer”) on June 11, 2018, alleging the organizers of the Northern Virginia International Film Festival were not protected by copyright’s fair use doctrine when they used Brammer’s image of a Washington, D.C. street scene from the internet to promote the festival.

“[The festival] did not comment on the photo, promote the photo, remix the photo or otherwise engage with the photo in a way that might stimulate new insights,” U.S. Circuit Judge Diana Gribbon Motz wrote. “What [they] did was publish a tourism guide for a commercial event and include the photo to make the end product more visually interesting…Such a use would not constitute fair use when done in print, and it does not constitute fair use on the Internet.”

The ruling overturned a controversial decision issued last June by Virginia federal judge, Claude M. Hilton, that held the festival’s use of Brammer’s photo was fair use, in part because it used the image in “good faith.” The Virginia federal court said the organizers “saw no indication that it was copyrighted.” This decision was widely criticized by many copyright experts. Courts have said that evidence of bad faith can weigh against a finding of fair use, but they typically don’t cite good faith when ruling in favor of fair use. That’s because infringement is a strict liability offense, meaning intent cannot be used as a defense.

In the April 29 ruling overturning the Virginia federal court’s decision, the Fourth Circuit avoided a sweeping ruling on the subject. Rather, Judge Motz said, “We doubt the validity of the argument,” and the panel rejected it for “a lack of any evidence of good faith to begin with…Whatever relevance good faith has to the fair use inquiry, Violent Hues [the production company for the festival] has not offered any evidence that it acted in good faith,” Judge Motz wrote.

Brammer is represented by David Leichtman and Tatsuya Adachi of Leichtman Law PLLC and by David C. Deal of David C. Deal PLC.

The festival organizers — formally Violent Hues Productions LLC — are represented by Paul J. Weeks of Kirkland & Ellis LLP.

The case is Russell Brammer v. Violent Hues Productions LLC, case number 18-1763, at the U.S. Court of Appeals for the Fourth Circuit.

* Lowe & Associates (“The Firm”) is a boutique entertainment and business litigation firm located in Beverly Hills, California. The Firm has extensive experience handling cases involving business, entertainment law and intellectual property, having provided top quality legal services to its clients since 1991. The Firm is recognized in multiple publications for its many achievements and high ethical standards, including Martindale-Hubbell and Super Lawyers.

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