On February 6, 2024, in Philpot v. Independent Journal Review, the U.S. Court of Appeals for the Fourth Circuit issued a copyright fair use decision in a photograph infringement case that is noteworthy for a number of reasons. Those who plan to use photos based on a fair use defense should take heed of this decision.

In this case, photographer Larry Philpot sued news website Independent Journal Review for using Philpot’s photo of singer Ted Nugent in an online article. One of the more interesting facts here was that Philpot uploaded his photo to Wikimedia Commons, which is governed by a Creative Commons license requiring attribution. In other words, he simply required that users of his photo give him attribution, not pay him. Users could use Philpot’s photo free of charge, provided they included the following attribution: “Photo Credit: Larry Philpot of www.soundstagephotography.com.” Instead, Independent Journal Review hyperlinked to Mr. Nugent’s Wikipedia page, where the photo was featured.

Yet another noteworthy fact is that the photo apparently generated only approximately $2 or $3 in revenue for the Independent Journal Review.

As you may know, there are four factors in any copyright fair use analysis. No one factor is considered determinative, and they are not equally weighted. In this case, Philpot swept the board, with the Fourth Circuit finding in his favor on every one of the fair use factors. Here we address the key issues with each of the four factors in turn.

First, in one of the first appellate decisions citing the U.S. Supreme Court’s new “transformative test” of the fair use defense, the Fourth Circuit appeared quick to hold that the purpose of the somewhat cropped photo that the Independent Journal Review used was not sufficiently different from the purpose of the original, despite the new context, and therefore was not transformative. As we wrote last May, when the Supreme Court’s Warhol decision came out, the recent Supreme Court majority opinion “made the already risky fair use defense even riskier, now that the Court has declined to hold new works transformative when their purpose is similar to that of the original work.” See our original article here. In this case, we agree with the Fourth Circuit that there was less of an argument that the Nugent photo was transformative than there was for the Prince photo in the Warhol case. Also addressing the first fair use factor, the Fourth Circuit also found that the use of the photo was “commercial,” despite having been licensed free of charge where the only currency required by Philpot was attribution.

Second, the Fourth Circuit noted that the photo was entitled to “thick” copyright protection. This is noteworthy because the second factor is the “nature of the work,” and very creative works (like an imaginative painting) are entitled to more protection than less creative works. This of course was a photo taken of Mr. Nugent performing, and some might argue the photo itself was not overly creative, as it simply depicted Mr. Nugent in action.

Third, given that the Court noted that Independent Journal Review largely only cropped out the negative space from the original photo, the Fourth Circuit found in Philpot’s favor on the “amount taken” factor.

Fourth, the Fourth Circuit found in Philpot’s favor on the “market harm” factor, even though Philpot had offered his photo for use free of charge, provided he was given credit. In doing so, the Fourth Circuit cited the famous U. S. Supreme Court Sony Betamax case, stating that “[the] copyright law does not require a copyright owner to charge a fee for the use of his works.”

This recent decision from the Fourth Circuit signals that courts, or at least those in the Fourth Circuit, may begin taking an increasingly pro-plaintiff stance on the fair use defense. This case illustrates that it is risky business to use another’s copyrighted material without a license or without faithfully adhering to the terms of a creative commons license. And we recommend that readers seek an analysis by skilled copyright counsel before proceeding otherwise.