Philpot v. Independent Journal Review

Plaintiff Larry Philpot, a photographer, brought a copyright infringement claim against news website defendant Independent Journal Review alleging that IJR infringed on Philpot’s copyright in a photograph of musician Ted Nugent. IJR included a copy of the photo alongside an online article, “15 Signs Your Daddy Was a Conservative,” which listed sign 5 as “He hearts ‘The Nuge.’” In 2013, plaintiff submitted the photo for registration with the U.S. Copyright Office as part of a collection of unpublished works. Plaintiff also published the photo on Wikimedia Commons under a Creative Commons license, which specified that anyone could use the photo for free with proper attribution. He also entered into a paid licensing agreement regarding the photo.

 

Defendant argued both that plaintiff’s copyright registration was invalid and that its use of the photo constituted fair use. The parties filed cross-motions for summary judgment, and the district court held that, while there was a dispute of material fact as to whether the copyright registration was valid, defendant’s use constituted fair use. On plaintiff’s appeal, the Fourth Circuit reversed and remanded.

 

In analyzing fair use, the court looked to the U.S. Supreme Court’s recent opinion in Andy Warhol Foundation for the Visual Arts v. Goldsmith, where the Court held that the first fair use factor, “the purpose and character of the use,” weighed against the Andy Warhol Foundation where Warhol’s work using a photographer’s image of pop icon Prince was for the same purpose as the original—i.e., to illustrate magazine stories about Prince. The Supreme Court noted that “[a] typical use of a celebrity photograph is to accompany stories about the celebrity.” The Fourth Circuit held that, as in Warhol, the first fair use factor weighed in favor of plaintiff, because the purpose and character of the use was the same. In fact, defendant’s use was less transformative than Andy Warhol’s because IJR did not alter the photograph in any meaningful way. Instead, the photo was used merely to depict and identify Ted Nugent, which was the same purpose as that of the original work and did not imbue the photo with a new function or meaning that would render the use transformative.

 

The court also concluded that another prong of the first fair use factor, whether the secondary use was of a commercial nature, also weighed in favor of plaintiff. While IJR did not charge readers to view articles, it did collect advertising revenues based on article views. Because the use was commercial—although not particularly successful, since the publisher collected only $2 or $3 for this particular article—the court of appeals found that the first factor weighed strongly against a finding of fair use.

 

The second and third fair use factors—the nature of the copyrighted work and the amount and substantiality of the work copied—also weighed against fair use. The court found that the photo merited “thick copyright protection” as a creative work due to plaintiff’s choice of subject matter, angle, exposure, composition, framing, location and exact moment of creation. Defendant had also copied a significant portion of the photo, only cropping it slightly before publishing it with its article.

 

Lastly, the fourth fair use factor—the effect of the use on the potential market for or value of the copyrighted work—weighed against fair use. Defendant argued that plaintiff permitted free use of the photo, and therefore there was no market harm. However, the court noted that the general rule is that courts will presume a cognizable market harm exists where a commercial use amounts to a mere duplication of the entirety of the original work; moreover, plaintiff had adequately shown that if defendant’s use became uninterrupted and widespread, it would disrupt the potential market for the photo.

 

Finding all four factors weighed in favor of plaintiff, the Fourth Circuit reversed the district court’s order denying plaintiff’s summary judgment motion and granting defendant’s on the issue of fair use.

 

The Fourth Circuit also considered defendant’s alternative defense that plaintiff’s copyright registration for the photo was invalid because the photo was registered as unpublished despite being published. The district court had found a material dispute of fact as to the registration validity, but the Fourth Circuit held that plaintiff was entitled to summary judgment.

 

If a copyright registration contains inaccurate information, it is nonetheless still valid unless (1) the applicant knew the information was inaccurate when she included it and (2) the inaccuracy, if known to the Register of Copyrights, would have caused the Register to refuse registration. Defendant argued that the registration was inaccurate because the photo was registered in a group of unpublished works, when in fact a week earlier plaintiff entered into a licensing agreement with regard to the photo. Defendant argued plaintiff thereby “published” the photo.

 

However, the court found that the agreement contained no offer to distribute or publicly display copies of the photo. Rather, the agreement provided that plaintiff would make at least 1,000 photos from his library available to a third party, AXS TV, from which AXS TV could select 12 for licensing. If it did not find 12 it liked, AXS TV could request further photos from plaintiff’s library. Upon selecting 12, AXS TV would inform plaintiff of its proposed and intended use of the photos, and plaintiff would deliver higher-resolution photos and agree to a worldwide, nonexclusive license to use and distribute the photos. AXS TV would not have a right to distribute any photos until this point. Thus, plaintiff did not, simply by entering the agreement, intend to or offer the photo for distribution, and thus did not “publish” the photo upon entering the agreement. Accordingly, the court held that plaintiff’s copyright registration was not inaccurate and so not invalid, and reversed the district court’s order denying plaintiff’s summary judgment motion as to this defense.

 

Summary prepared by David Grossman and Erin Shields