NYIPLA Files an Amicus Brief in Russel Brammer v. Violent Hues Productions

Lauren Emerson, Robert Isackson, Martin Schwimmer, and Mitchell Stein were authors on the brief. 

The NYIPLA recently submitted an amicus brief in Russell Brammer v. Violent Hues Productions, a case concerning the unauthorized use of plaintiff’s time-lapse photograph of a D.C. neighborhood on a website promoting defendant’s film festival. The case is currently before the Court of Appeals for the Fourth Circuit. In its brief, which was submitted in support of neither party, the NYIPLA argued that the District Court erred in granting summary judgment in favor of defendants based on fair use. The brief highlights several legal errors in the lower court’s application of the first and second statutory fair use factors in particular. With respect to the first factor, the purpose and character of the use, the NYIPLA argued that the District Court’s analysis erred in finding the work transformative by conflating motivation with purpose, and by failing to consider whether the asserted purpose actually justified defendants’ taking. Moreover, the lower court’s decision adopted an overly narrow construction of commerciality, and erroneously weighed defendants’ asserted good faith as part of its analysis. With respect to the second fair use factor, the nature of the copyrighted work, the District Court’s analysis mischaracterized expressive images as “facts”, and inappropriately broadened the scope of fair use protection for published works. The NYIPLA argued that, on balance, the analysis ran contrary to settled law, and, if affirmed, this decision would broaden the scope of fair use to the detriment of rightsholders, and especially photographers.

To read the full amicus curiae brief, click HERE.