In One of 1st Post-'Warhol' Appeals, 4th Circuit Says Nugent Pic on News Site Not Fair Use

Litigation attorney Cynthia Gierhart was cited in The National Law Journal discussing the complexities of "fair use" in copyright law, accentuated by recent judicial decisions. She pointed out that the U.S Supreme Court's verdict in the Warhol case, involving the use of a copyrighted photograph without permission, has not simplified the fair use landscape, which remains heavily dependent on specific facts. Ms. Gierhart noted the mixed outcomes in post-Warhol decisions, suggesting a possible trend where courts are becoming increasingly stringent against the use of unlicensed photographs in publications. The U.S. Court of Appeals for the Fourth Circuit's recent ruling against the Independent Journal Review, which used a photo of Ted Nugent without providing credit, represents one of the first significant appellate interpretations of the Supreme Court's new fair use test, signaling a shift toward stronger copyright holder protections. This includes a detailed examination of the transformative use of copyrighted material and its commercial implications, which Ms. Gierhart and others believe could significantly affect copyright infringement cases moving forward, particularly in how news organizations and other entities use copyrighted content.

"Fair use is a notoriously difficult and fact-specific analysis, and the Supreme Court's decision in Warhol did little to un-complicate it," she said.

"The post-Warhol decisions have, so far, been a mixed bag," she added. "What Warhol and Philpot have in common is that they both involved use of a photograph in a publication without the photographer's permission, and both courts found there was no fair use. This could suggest courts are taking an increasingly tough stance against use of unlicensed photos in publications."

READ: In One of 1st Post-'Warhol' Appeals, 4th Circuit Says Nugent Pic on News Site Not Fair Use