Fair Use Decision in the Fourth Circuit

Whether an unauthorized use of a copyrighted work constitutes fair use, four statutory factors are considered: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.” Campbell v. Acuff-Rose Music Inc., 510 U.S. 569, 577 (1994) (quoting 17 U.S.C. § 107).

While the first fair use factor most clearly weighs in favor of fair use if the use was transformative and noncommercial, “the more transformative the new work, the less will be the significance of other factors, like commercialism.” Campbell, 510 U.S. at 579.

The second fair use factor considers “the extent to which it is creative.” Monge v. Maya Mags., Inc., 688 F.3d 1164, 1177 (9th Cir. 2012); accord A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630, 640 (4th Cir. 2009).

The third factor weighs against fair use where “a significant percentage of the copyrighted work was copied,” or where “the copied portion essentially was the ‘heart’ of the copyrighted work.” Sundeman v. Seajay Soc’y, Inc., 142 F.3d 194, 205 (4th Cir. 1998) (quoting Wright v. Warner Books, Inc., 953 F.2d 731, 738 (4th Cir. 1991)).

The fourth factor considers “not only the extent of market harm caused by the particular actions of the alleged infringer, but also whether unrestricted and widespread conduct of the sort engaged in by the defendant would result in a substantially adverse impact on the potential market for the original.” Campbell, 510 U.S. at 590 (cleaned up); accord Bouchat IV, 619 F.3d at 312 (“[O]ne need only show that if the challenged use should become widespread, it would adversely affect the potential market for the copyrighted work.” (quoting Harper & Row, 471 U.S. at 568)).

Photo of the Nuge

The Fourth Circuit recently held that the use of a photograph of musician Ted Nugent to illustrate an online article titled “15 Signs Your Daddy Was a Conservative,” in connection with the fifth sign, “He hearts ‘The Nuge,’” was not fair use. Philpot v. Independent Journal Review, No. 21-2021, — F. 4th — (4th Cir. Feb. 6, 2024).

The photograph was available under a Creative Commons license which “specified that anyone could use the Photo for free so long as they provided the following attribution: ‘Photo Credit: Larry Philpot of www.soundstagephotography.com.’” The article did not include the required attribution, and a hyperlink to Nugent’s Wikipedia page, which included the link to a website with the required attribution, did not bring it under that license.

The Court found that the online publisher “did not pay the customary price of direct attribution to [the photographer] Philpot” and that the article had generated only about $2 to $3 of advertising revenue. The Court further found that the use of a photograph of Ted Nugent in an article that included a reference to Ted Nugent “did not add new meaning or function,” citing Brammer v. Violent Hues Prods., LLC, 922 F.3d 255, 263 (4th Cir. 2019) (holding that a use was not transformative where the only obvious change made to the photograph’s content was to crop it so as to remove negative space).

To be sure, the article was not especially profitable for IJR. But the salient question is whether IJR stood to profit, not whether it was particularly successful at that venture. See Brammer, 922 F.3d at 265 (“[Defendant’s] website did not generate direct revenue or run advertising. But [Defendant] is a limited liability company, and it used the Photo on its website to promote a for-profit film festival. On their own, these facts tend to demonstrate commercial use.”). Thus, IJR’s use of the Photo was commercial.

Because IJR’s use of the Photo was non-transformative and commercial, the first factor of the fair use analysis counsels strongly against fair use.

The Court also concluded that the remaining other fair use factors weighed against finding fair use. For example, the Court noted that the photographer had made creative choices including selecting the subject matter, angle of photography, exposure, composition, framing, location, and exact moment of creation. Also, having only cropped out the negative space while keeping the photograph’s expressive features, or the “heart” of the work, a significant percentage of the photograph was used in the article. And the Court noted that if copying a photograph to depict musicians for a commercial purpose without payment or attribution became widespread, the photographer’s potential market would likely decrease. Here, the photographer “relies on attributions or payments from users of his images to sustain himself in the world of concert photography.”

UPDATE (02/12/2024): Professor Goldman noted that “it seems like this case is about attorneys’ fees. . . . seeing Philpot taking this case on appeal for a $3 article rather than working towards a reasonable settlement, there is no way I would award him attorneys’ fees.”

 

The copyright attorneys at Thomas P. Howard, LLC can evaluate copyright infringement issues including whether the alleged use is actionable.