Even in slow motion, fair use is confusing

Via Twitter, Rick Sanders pretty much writes a guest post for us — read his whole thread:

Photographer took time-lapse photograph of a neighborhood at night. Promoter of festival taking place in there used the photo to show attendees locations of events & POI. Photographer sued. On MSJ, ct. found #FairUse. https://t.co/giDCuNUigj #copyright

— Rick Sanders (@RickSandersLaw) June 13, 2018

The decision, in an Eastern District of Virginia case called Brammer v. Violent Hues Productions, is here. As Rick notes further down in the thread:

It won’t surprise you that I think this reasoning is unsupportable. Promoter had much fancier counsel than photographer, so maybe that was a factor. I suspect ct. felt lawsuit was a waste of time & trollish & jumped at a way out. #copyright #photography

— Rick Sanders (@RickSandersLaw) June 13, 2018

Hmm. The discussion thread focuses on what seems to have been the court’s reaction, at least reading between the lines, to the effect that if indeed a wrong was wrought here, that didn’t necessarily justify making a federal case out of it. That problem is what the proposed “small claims” copyright tribunal, which I blogged about here, was meant to address. That bill remains in the House Judiciary Committee as of the date of this post. As Rick notes, “I’m sympathetic with the desire to jettison small, possibly trollish cases, but let’s not make bad law to do so.”

That’s a good point, in the abstract. As a practical matter, though, judges make that kind of bad law for that kind of reason every day. There’s a lot of bad law, and that’s one reason.

They also do something else: Jettison small, trollish cases by being less than candid about the reasons for dismissing them. Every day.

I wonder which is worse? At least you can appeal bad decisions.

LOL just kidding. Federal civil appeals are not for little appellants!

But hey, we just work here. Let’s take Rick’s valid criticism at face value.

Backing up Rick’s observation, this really is the money section of the opinion (citations and quotations omitted):

[C]oncerning the fourth factor, there is no evidence that Violent Hues’ use of the photo had any effect on the potential market for the photo. The Supreme Court has stated that this fourth factor is undoubtedly the single most important element of fair use. The Court’s task is to determine whether the defendant’s use of the plaintiff’s works would materially impair the marketability of the works and whether it would act as a market substitute’ for them.

There is no evidence that Violent Hues’ use has had an adverse effect on the market for the photograph. Brammer attests that he has been compensated for the photo six times, including three physical print sales and three usage licenses. At least two of these sales occurred after Violent Hues’ alleged infringement began, demonstrating that Violent Hues’ use did not affect the market for the photo. Brammer further testified that he currently makes no effort to market the photo. Additionally, Violent Hues’ transformative and non-commercial use of the photo undercuts a finding of adverse effect on the photo’s market: Violent Hues did not sell copies of the photo or generate any revenue from it. There can be no legitimate argument that Violent Hues has usurped the market by providing a market substitute for the photo, especially since Violent Hues only used approximately half of the photo on its website.

Ideally, this would have been the whole of it. No impairment, or no proof of impairment, of the market for the work — usually the case, which is The Problem in copyright small claims, but so be it. The Supreme Court says this factor is “undoubtedly” the most important one. And while you do have to “apply” all four factors, it’s a “balancing test.” You don’t need to run the table.

The problem is, alas, that judges love to run the table. They do. Let’s not judge the judiciary: It’s tempting when it’s your table, your pool hall and your balls! I have been before some judges who do not give in to this temptation, and it is truly a pleasure losing by one factor instead of four, or six, or eight.

Not that all balancing tests aren’t pure pleasure. They are! They transform subjective judgments into literal science!

But for some reason, a lotta lotta judges feel the need to check off every single box — almost as if they have appellate review in mind or something, which, as I noted above, is kind of silly. Which brings us to the court’s discussion of one of the other factors: transformative use. (My friend and former colleague Brian Farkas explainis the concept in this neat piece.) On the other two factors — nature of the use and how much of the work was used — the court found for the defendant on grounds we could also discuss profitably, but which are not particularly remarkable in the murky world of fair use.

The transformative use analysis, however, is fairly unique:

Violent Hues’ use of the photograph was transformative in function and purpose. While Brammer’s purpose in capturing and publishing the photograph was promotional and expressive, Violent Hues’ purpose in using the photograph was informational: to provide festival attendees with information regarding the local area. Furthermore, this use was noncommercial, because the photo was not used to advertise a product or generate revenue.

That is a unique take on transformative use, which is usually understood as a use that transforms the original copyrighted work in its appearance or nature to such a great degree that the use no longer qualifies as infringing. It has been transformed into a different creative work, of which the original work is barely (how much? barely!) recognizable as a component, akin to how we every day inhale the expressed breath of exotic creatures such as tigers and confusion-survey experts.

Now, again, to be fair, the word “use” in the phrase “transformative use” is a bit minsleading, right? It does sound a lot like transforming the way the work is used. It was first used as a floor wax, and now it’s used as a dessert topping. But no: The word “use” here means using it in a work-changing way.

Yes, it’s confusing, the way the word “use” is used, which makes a body recall that we changed “famous marks doctrine” to “well-known marks doctrine” after “fame” became a thing because of the federal trademark dilution statute. Maybe we should consider changing “transformative use” to something else without the word “use” in it. Transformative negation? Withering away? Just “transformation”?

Changing the words we use may not be any use, but misuse of “use” in analyzing transformative use could be useful on appeal.

Gotcha!