Fair Use in the Spotlight: Lessons from Philpot v. Independent Journal Revie

On February 6, 2024, the U.S. Court of Appeals for the Fourth Circuit issued a noteworthy ruling in Philpot v. Independent Journal Review. This case highlights significant challenges for those relying on the fair use defense when using copyrighted photographs.

Background of the Case

Larry Philpot, a professional photographer, sued Independent Journal Review for using his photograph of musician Ted Nugent without proper attribution. Philpot had uploaded the image to Wikimedia Commons under a Creative Commons license. The license allowed free use of the photo provided users credited him with: "Photo Credit: Larry Philpot of www.soundstagephotography.com."

Instead of following these straightforward terms, the news outlet hyperlinked to Nugent’s Wikipedia page, where the photo was featured, but failed to attribute Philpot directly. Complicating matters, the photo reportedly generated only $2 or $3 in revenue for the article where it was used.

Despite these seemingly minor details, the Fourth Circuit's decision reinforced the importance of respecting copyright and licensing agreements.

Breaking Down the Fair Use Factors

Fair use is evaluated through four factors, none of which is determinative. In this case, the Fourth Circuit found in favor of Philpot on all counts, setting a significant precedent.

1. Purpose and Character of the Use

This case marks one of the first applications of the U.S. Supreme Court’s 2023 Warhol decision, which tightened the standard for determining whether a use is transformative. The court concluded that Independent Journal Review’s cropping of the photo and its use in an article did not meaningfully transform the image’s original purpose, which was to depict Nugent performing. Simply put, the photo's context may have changed, but its function remained the same.

Additionally, the court deemed the use “commercial” because the article was tied to revenue, albeit minimal. This finding highlights that even works offered for free, such as those under Creative Commons licenses, can still carry legal obligations.

2. Nature of the Work

The court found the photo to be deserving of “thick” copyright protection due to its creative nature. While live-performance photography may not seem as inherently artistic as a painting, the court acknowledged the skill and creativity involved in capturing such moments, further tipping the scales in Philpot’s favor.

3. Amount and Substantiality of the Portion Used

The court noted that Independent Journal Review had retained the central elements of the original image, cropping only the negative space. This minimal alteration did not mitigate their use of a substantial portion of the work, a factor that weighed heavily against the defendant.

4. Effect on the Market

Even though Philpot allowed free use of the photo with proper attribution, the court ruled that his licensing terms were not followed, creating potential market harm. Citing the landmark Sony Betamax case, the court reaffirmed that copyright law protects creators, even if they choose not to monetize their works.

Implications for Copyright Users

This decision reflects an evolving approach in copyright law, particularly in the Fourth Circuit. For creators, publishers, and businesses, it underscores key takeaways:

• Transformative Use Faces Stricter Scrutiny:

  Courts are increasingly reluctant to classify uses as transformative if the new work serves a purpose similar to the original.

• Adherence to Licensing Terms is Non-Negotiable:

  Creative Commons licenses are legally binding, and even minor deviations can lead to liability.

• Market Harm is Broadly Defined:

  Offering work for free does not shield users from the risk of infringing copyright if they fail to meet license requirements.

Conclusion: A Cautionary Tale for Copyright Users

The Philpot v. Independent Journal Review ruling is a stark reminder that fair use is not a guaranteed defense. Even minimal revenue or seemingly minor errors in attribution can lead to significant legal consequences.

If you have questions about copyright law or need legal guidance on intellectual property matters in Puerto Rico, contact MZLS LLC today for expert advice tailored to your needs.