Paul, Weiss Aids in Successful Appeal on Fair Use

Overturning a decision that would have had disastrous consequences for photographers who depend on revenue generated by the use of their copyrighted works, the Fourth Circuit ruled on April 26 that the Eastern District of Virginia had erred in finding fair use of a copyrighted photograph, reversing and remanding the case. Paul, Weiss filed an amicus brief on behalf of Volunteer Lawyers for the Arts (VLA), the leading legal aid and education organization focused on low-income artists and cultural organizations, in support of the photographer plaintiff in the case, Brammer v. Violent Hues Productions, LLC.

In 2016, without purchasing a license or obtaining any other authorization, Violent Hues Productions copied the plaintiff’s time-lapse photograph of the Adams Morgan neighborhood in Washington, D.C. and pasted it to its own promotional website for its upcoming Northern Virginia Film Festival. The district court granted summary judgment to Violent Hues, reasoning that each of the fair use factors favored the defendant’s “informational” use of the photograph on its website.

In our amicus brief for VLA, we argued that the district court had ignored clear evidence that Violent Hues’ use was commercial in nature, failed to account for the photograph’s creative aspects, and misapprehended the adverse effect a finding of fair use would have on the market for the photograph. We also argued that the district court’s decision, if permitted to stand, would have had disastrous consequences for low-income photographers who depend on the revenue generated by the use of their copyrighted works to support the creation of new works.

The Paul, Weiss team included litigation partner Jay Cohen, counsel Darren Johnson, associates Matthew Merlo, Anne Simons, and Amitav Chakraborty.

Click here to read the decision
Click here to read the VLA brief