Fourth Circuit Fixes Fair Use

On April 26, the Fourth Circuit Court of Appeals reversed a controversial ruling that caused significant concerns for visual artists. Brammer v. Violent Hues Productions, LLC, No. 18-1763 (4th Cir. Apr. 26, 2019). The lower court ruled that a festival promoter's unlicensed use of a copyrighted photograph on its website in connection with advertising the festival was permitted as "fair use." More information concerning the trial court's ruling are contained in our earlier article, Is Fair Use Still Fair, available here. After analyzing the statutory fair use factors, the lower court found that they weighed in favor of permitting the unlicensed use of the work. These factors are:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit/educational purposes;