Fourth Circuit Rules Against News Org's Fair Use of Ted Nugent Photograph

The U.S. Court of Appeals for the Fourth Circuit ruled on Feb. 6, 2024, that a news organization's use of a photograph of musician Ted Nugent did not constitute fair use, siding with the photographer who argued that the news organization did not alter or add any new expression required to overcome the requirements for proper attribution. See Philpot v. Independent Journal Review, No. 21-2021 (4th Cir. Feb. 6, 2024).

The dispute stemmed from a photograph taken in 2013 of Ted Nugent performing. The photographer, Larry Philpot, registered the photograph with the U.S. Copyright Office as part of unpublished works. Philpot published the photo on Wikimedia Commons, a popular hosting site, under a "Creative Commons" license that specified anyone could use the photo for free as long as they provided attribution to the photographer.

In 2016, news website Independent Journal Review (IJR) posted an article titled "15 Signs Your Daddy was a Conservative." Under the fifth "sign," the article read "He hearts 'The Nuge'," with the photograph of the "Cat Scratch Fever" artist. The article did not include the required attribution for the photograph.

Philpot sued IJR for copyright infringement. The U.S. District Court for the Eastern District of Virginia granted IJR's motion for summary judgment on fair use grounds, and Philpot appealed to the Fourth Circuit.

There are two ways to lawfully use another's copyrighted work: obtain a license (i.e., permission from the copyright owner) or use it in a manner considered "fair use." Because IJR did not attribute the photo as required under the Creative Commons license, the use was outside the scope of the license. Thus, the only remaining lawful use would be if IJR's use of the photo was a fair use – the focus of the court's ruling.

Fair Use Factors

When courts determine whether the use of a copyrighted work is considered fair use, they turn to four factors: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the work as a whole, and the effect of the use upon the potential market or value of the copyrighted work. 17 U.S.C. § 107; see also Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994).

For the first factor, the Fourth Circuit found IJR's use of the photograph to be non-transformative and commercial, which "counsels strongly against fair use." The court cited the recent U.S. Supreme Court decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 527-33 (2023), which found that "[a] typical use of a celebrity photograph is to accompany stories about the celebrity" and, where the purpose of the work is to illustrate the story about the celebrity, the use of the photograph is not transformative use. The Fourth Circuit said Warhol provided "helpful guidance" for its decision.

"Because IJR's use of the Photo did not add new purpose or meaning, and only minimal alteration, the use was not transformative," the Fourth Circuit wrote.

In determining whether the use of the photograph was commercial or for nonprofit educational purposes, the court looked to whether IJR "stood to profit." Though IJR does not charge readers to view its articles, it obtains revenue from advertising based on views of the photo (earning only $2 or $3 in ad revenue for the article with the Nugent photo). Thus, the court found, the use of the image was commercial.

For the second factor, the court found that the nature of the copyrighted work was "creative," due to the photographer's "several creative choices" when taking the photograph, weighing against fair use. In regard to the third factor, the court determined IJR copied a significant percentage of the photo, cropping out only the negative space and keeping the majority of the photograph. The final factor also weighed against fair use, with the court finding that widespread actions such as IJR's would cause "cognizable market harm."

Potential Precedent

The Fourth Circuit's decision is among the first circuit court decisions post-Warhol and could signal an increasingly strict interpretation of fair use. The Philpot decision is a good reminder to follow these practice tips:

• Just because something is on the internet does not mean you can use it!
• Carefully read the requirements for Creative Commons and other "free" licenses. Even if the photos are available for "free" use, they might require attribution or be limited to non-commercial uses. If you use the works outside the scope of the license, you may be liable for copyright infringement.
• News organizations do not have special exemptions to use copyrighted works without a license. As held in Philpot, uses for news and commentary can still be held to be a commercial use. And even nonprofit educational uses are not automatically a "fair use" – rather, the nonprofit use is just one part of one factor.