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What We Learned This Week: A "Misguided" Ruling on Fair Use Is Reversed

By David Schonauer   Friday May 3, 2019


This year’s World Intellectual Property Day came with a bonus:

The U.S. Court of Appeals for the Fourth Circuit emphatically rejected a controversial fair use ruling by a lower court, giving photographers everywhere a reason to celebrate, declared the National Press Photographers Association.

The earlier ruling, in the copyright infringement case of Brammer v. Violent Hues, held that an unauthorized use of a photograph qualified as fair use, even though it was a commercial use that did little to give any new meaning to the original photograph, noted PDN.

In that case, photographer Russell Brammer sued Violent Hues Productions for unauthorized use of a time-lapse photograph of the Adams Morgan neighborhood of Washington, DC. Violent Hues, which organizes the annual Northern Virginia Film Festival, used Brammer’s photo on a website intended to provide festival attendees with information about lodging, transportation, and things to do in the northern Virginia/Washington D.C. area.

U.S. District Court Judge Claude M. Hilton ruled that Violent Hues's use of Brammer’s image was “transformative”—and therefore favored a finding of fair use—because Brammer made the image for “promotional and expressive” purposes, while “Violent Hues’ purpose in using the photograph was informational,” noted PDN at the time. Judge Hilton also ruled that Violent Hues acted in “good faith,” and that that such good faith would favor a determination of fair use.

Legal observers and photographers’ trade groups strongly criticized Judge Hilton’s decision. This week the appellate court also vigorously rejected his ruling.

“In its overwhelmingly favorable holding, the appeals court wrote that ‘fair use is not designed to protect lazy appropriators. Its goal instead is to facilitate a class of uses that would not be possible if users always had to negotiate with copyright proprietors,’” noted the NPPA.

“The appeals court also said: ‘If the ordinary commercial use of stock photography constituted fair use, professional photographers would have little financial incentive to produce their work,’” added PDN.

After delivering Brammer a victory on the fair use question, the appeals court sent the case back to the lower court for further proceedings.

Here are some of the other photo stories we spotlighted this week:
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1. He Confronts His Family's Tragic Past in Colombia's War

As a photographer, Andrés Cardona had documented Colombia’s bloody history as a decades-old civil war inflicted on strangers. But among the murdered were members of his own family — including his great-grandfather, father, mother, uncle. Over the past three years, noted The New York Times, Cardona has confronted his family’s history, drawing upon portraits, family pictures and re-creations of murder scenes to bridge the past to the present with the hope of making sense of — and accepting — all that happened.


2. Tyler Mitchell's "Black Utopia"

Last year Tyler Mitchell made history and headlines by becoming the first African American photographer to shoot a cover of Vogue magazine. Now a retrospective of Mitchell’s work is on display in his first solo exhibition, titled  “I Can Make You Feel Good,” at Foam Fotografiemuseum Amsterdam. Mitchell calls his creative universe a “self-contained black utopia,” noted AnOther. Mitchell says he is “interested in showing a certain community, intimacy, optimism, sense of play, and freedom” in his work.


3. Dave Heath's Mastery of Solitude

Dave Heath was abandoned at age 4 and spent his childhood in foster homes and an orphanage. His interest in photography, spurred by a photo essay about an orphan in Life magazine, helped him build a lifeline between himself and the world, noted Feature Shoot. His 1965 work “A Dialogue With Solitude” was a “convention-smashing opus” that framed alienation and loneliness, added The New York Times. Now there is a new book, “Dialogues With Solitudes,” and an exhibition at The Photographers’ Gallery in London


4. Bill Owens at Altamont, When Rock Let It Bleed

In 1969, Bill Owens was working for a newspaper in Livermore, CA. But that December, the photographer was offered a freelance gig from Associated Press to cover an upcoming music festival at the nearby Altamont Speedway. With a lineup of bands including the Grateful Dead and the Rolling Stones, the event was supposed to be a West Coast answer to the rain-soaked revelry of the Woodstock festival. Instead, we noted, Owens’s images from the festival, now collected in the book "Bill Owens: Altamont 1969," capture the disastrous end of an era.


5. "Last Day on a Chain" Looks at "Evil Sport of Dog Fighting"

"Compassion, salvation and misperceptions." Those, notes St. Louis-based photographer Mike Bizelli, are the themes of his his book project "Last Day on a Chain," which is now being crowdfunded at Kickstarter. The book, he writes, "sheds light on the evil blood sport of dog fighting, overcomes the negative stereotypes that pit bulls suffer in the media and pays homage to the animal welfare agencies and legions of compassionate rescuers, shelter workers and foster and adoption families." This week he told PPD how the project came about.

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