92 F.4th 252
4th Cir.2024Background
- Larry Philpot, a professional photographer, took a photo of Ted Nugent and registered it with the Copyright Office as part of a collection of unpublished works.
- Philpot later published the photo on Wikimedia Commons under a Creative Commons license that required user attribution.
- Independent Journal Review (IJR), a news website, used Philpot's photo in an online article without providing the required attribution, earning minimal advertising revenue from the article.
- Philpot sued IJR for copyright infringement. IJR claimed fair use and challenged the validity of Philpot’s copyright registration, arguing the work had been published before registration.
- The district court granted summary judgment to IJR on fair use but denied summary judgment to both parties on the validity of Philpot’s registration.
- Philpot appealed both rulings to the Fourth Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was IJR’s use of the photo fair use? | Use was not transformative or fair, was commercial, copied the heart of the work, and harmed the market. | Use was transformative as part of a new context (satirical list), minimal profit, photo freely available online. | Not fair use; use was non-transformative, commercial, and all four factors favored Philpot. |
| Was Philpot’s copyright registration invalid due to prior publication? | Agreement with AXS TV only allowed review, not public distribution, so photo not "published" before registration. | Agreement constituted publication, so registration as unpublished was inaccurate and invalid. | Registration valid; agreement did not amount to publication under copyright law. |
Key Cases Cited
- Campbell v. Acuff-Rose Music Inc., 510 U.S. 569 (sets out the four-factor fair use test)
- Harper & Row Pubs., Inc. v. Nation Enters., 471 U.S. 539 (describes exclusive rights under Copyright Act and market harm analysis)
- Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (transformative use clarified under fair use)
- Brammer v. Violent Hues Prods., LLC, 922 F.3d 255 (non-transformative use of photography and market harm)
- Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 595 U.S. 178 (requirements for invalidating copyright registration)