Russell Brammer, a professional photographer whose copyright infringement complaint was dismissed on fair use grounds has asked the Fourth Circuit Court of Appeals to review the controversial decision.

The June 2018 decision by the U.S. District Court for the Eastern District of Virginia in Brammer v. Violent Hues, LLC—which was widely criticized by copyright experts for straying far afield from some core principles of U.S. copyright law—rested in part on the finding that defendant Violent Hues Productions, LLC’s unauthorized use of Brammer’s photograph of Washington D.C.’s Adams Morgan neighborhood was made in “good faith” because the defendant saw “no indication that” the photograph was copyrighted.

Copyright experts were quick to point out that copyright law does not require the owner of a work to provide notice of copyright ownership; placing a copyright notice—most commonly seen in the form of a © symbol and the date of publication—is optional for the copyright owner, and the lack of such a notice will not defeat an infringement claim.

Experts also pointed out that, contrary to the judge’s reasoning, an infringer’s “good faith” or lack of notice is irrelevant to a fair use analysis based on the traditional four-factor test. A defendant’s intent might come into play in certain infringement cases, but not in the way the judge in the Brammer case understood: a plaintiff can introduce evidence of a defendant’s “bad faith”—dishonesty—to rebut a fair use defense, but that does not mean that a defendant can introduce evidence of its “good faith” or lack of knowledge about the copyright status of a work to bolster its fair use defense.

The Authors Guild believes in a balanced approach to fair use that respects the rights of creators while also giving them the freedom to make use of existing works to produce new ones. This is only possible with congressional guidance and the willingness of courts to develop uniform and clearly articulated standards to determine when use without permission is “fair use” in the spirit of copyright law. We will keep you updated as this case moves forward.