Is the internet fair game? Photographer Russell Brammer found one of his long-exposure photos of a Washington, D.C. neighborhood cropped and used by the Northern Virginia Film Festival. Brammer sent a cease and desist letter to Violent Hues Productions, the company that organizes the festival, and it responded by immediately taking the photo down. Brammer then sued the company for copyright infringement for unauthorized use of his photograph of the Adams Morgan neighborhood of Washington, DC., and it responded by claiming fair use.
U.S. District Court Judge Claude M. Hilton agreed with Violent Hues Productions, recently ruling that finding a photo on the Internet and then using it without permission on a commercial website can be considered fair use. Judge Hilton of the Eastern District of Virginia in Brammer v. Violent Hues Productions LLC dismissed Brammer’s infringement claim on the grounds that the defendant’s use of the photo was a fair use, and therefore did not constitute infringement. Judge Hilton opined that the photograph is a “factual depiction,” meaning that the copying of it is fair use.
With millions of images being uploaded every day and many users believing that the Internet is the public domain creating a sense of entitlement that everything found there is free for the taking – what are visual creators to do to enforce their rights? As evidenced above, fair use has been raised as a successful defense in a growing number of cases, leading some to question if IP enforcement is a right without a real remedy when it comes to visual works.
Experts Mickey H. Osterreicher (National Press Photographers Association), Ken Norwick (Norwick & Schad), and Nancy E. Wolff (Cowan, DeBaets, Abrahams & Sheppard LLP) will discuss these and other issues at the Federal Bar Association’s 2018 Annual Meeting and Convention in New York City. Register now at www.fedbar.org/FBAcon18 to take advantage of early bird rates!
The FBA Convention provides the opportunity to dive into a myriad of intellectual property issues. “Drafting, Negotiating, and Enforcing Intellectual Property License Agreements: Strategies and Pitfalls” will explore the main clauses of a licensing agreement that require particular attention. Moderator and FBA National President-Elect Maria Z. Vathis (Bryan Cave Leighton Paisner LLP), Donna Frosco (Dunnington Bartholow & Miller LLP), Olivera Medenica (Dunnington Bartholow & Miller LLP), Viviana Mura (Luxottica Group), and Rita M. Odin (Estee Lauder Companies, Inc.) will touch upon potential Trademark Trial and Appeals Board issues that may require special consideration, both from a licensing and enforcement perspective.
The program will also include mock negotiation strategies, as well as an analysis of a hypothetical dealing with two parties entering into a licensing deal, and the deal subsequently turning sour. In the litigation context, panelists will go over the latest case law as it pertains to the topics discussed. The panel will close with a brief outline of best strategies to follow when negotiating licensing deals.
Join the FBA in New York City for the 2018 Annual Meeting and Convention September 13 – 15. The 2018 Annual Meeting and Convention will be located at the New York Marriott Downtown, situated in the heart of NYC’s Financial District. Sign up to attend the Convention on or before Friday, August 3, 2018 at www.fedbar.org/FBAcon18 to take advantage of reduced registration rates!
Stacy Slotnick, Esq. holds a J.D., cum laude, from Touro Law Center and a B.A., summa cum laude, from the University of Massachusetts Amherst. She performs a broad range of duties as an entertainment lawyer, including drafting and negotiating contracts; addressing and litigating trademark, copyright, patent, and other IP issues; and directing the strategy and implementation of public relations, blogging, and social media campaigns.