Photographers face many challenges in the digital era, none more significant than having their works copied and repurposed without approval. In the two cases discussed below, the photographers took their infringement cases to court and initially lost. According to photography rights advocates, the lower courts have generally not been supportive in protecting the arts, which has led to a wave of rulings like these. Such rulings negatively impact the fees available for stock images, which is a significant revenue stream for many photographers.

The skyline photo turned film festival poster

Brammer v. Violent Hues Productions, LLC, 922 F.3d 255 (4th Cir. 2019), involves the Violent Hues Film Festival’s use of one of Russell Brammer’s long-exposure photos of city skylines at night as the backdrop for a 2018 poster. The Washington, DC–based photographer sued the festival, but the district court dismissed the case on summary judgment. Despite the apparent infringement for commercial use, the court ruled that the festival had sufficiently “transformed” Brammer’s work and had done so in good faith.

The Fourth Circuit reversed the decision, finding the lower court erred in considering Violent Hues’ supposed “good faith” in using the photograph, which was downloaded from a website that clearly stated the image was copyrighted. The appellate court added that image was not sufficiently transformed from the original work to constitute fair use.

The teeth of the matter

The second case, Pohl v. MH Sub I LLC, involves a dentist who took before-and-after photographs of his patients’ teeth. The accused infringer posted the photos on websites of at least seven other dentists without permission. The district court granted summary judgment, holding that Dr. Pohl’s photographs were not sufficiently creative or original to merit copyright protection.

The Eleventh Circuit reversed the lower court decision, finding that the district court had not viewed the summary-judgment evidence in the light most favorable to Dr. Pohl. By failing to credit evidence that contradicted some of its factual conclusions, the district court improperly weighed the evidence and resolved disputed issues in favor of the defendant. While the district court characterized the taking of the photos as involving only “the most rudimentary and basic task for photographers since the era of the daguerreotype,” the appellate court found there were genuine issues of material fact as to whether Dr. Pohl made sufficiently creative decisions in taking the photographs, “no matter how crude, humble or obvious” they may have been.

Reversed and remanded

Both cases were reversed and remanded for trial. The Supreme Court once said works need only have some “creative spark” to be protected by intellectual property laws regardless of the aesthetic merit.

Those whose images or intellectual property are taken without permission need not give up. Even after the lower courts ruled against these two photographers, they appealed their cases and won. Intellectual property attorneys often handle this type of litigation to secure damages and prevent unauthorized use.