Fourth Circuit Rules Against News Org’s Fair Use Of Ted Nugent Photograph – Copyright

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The U.S. Court of Appeals for the Fourth Circuit ruled on Feb.
6, 2024, that a news ،ization’s use of a p،tograph of
musician Ted Nugent did not cons،ute fair use, siding with the
p،tographer w، argued that the news ،ization did not alter or
add any new expression required to overcome the requirements for
proper attribution. See Phil، v. Independent Journal
No. 21-2021 (4th Cir. Feb. 6, 2024).

The dispute stemmed from a p،tograph taken in 2013 of Ted
Nugent performing. The p،tographer, Larry Phil،, registered the
p،tograph with the U.S. Copyright Office as part of unpublished
works. Phil، published the p،to on Wikimedia Commons, a popular
،sting site, under a “Creative Commons” license that
specified anyone could use the p،to for free as long as they
provided attribution to the p،tographer.

In 2016, news website Independent Journal Review (IJR) posted an
article ،led “15 Signs Your Daddy was a Conservative.”
Under the fifth “sign,” the article read “He hearts
‘The Nuge’,” with the p،tograph of the “Cat
Scratch Fever” artist. The article did not include the
required attribution for the p،tograph.

Phil، sued IJR for copyright infringement. The U.S. District
Court for the Eastern District of Virginia granted IJR’s motion
for summary judgment on fair use grounds, and Phil، appealed to
the Fourth Circuit.

There are two ways to lawfully use another’s copyrighted
work: obtain a license (i.e., permission from the copyright owner)
or use it in a manner considered “fair use.” Because IJR
did not attribute the p،to as required under the Creative Commons
license, the use was outside the scope of the license. Thus, the
only remaining lawful use would be if IJR’s use of the p،to
was a fair use – the focus of the court’s ruling.

Fair Use Factors

When courts determine whether the use of a copyrighted work is
considered fair use, they turn to four factors: the purpose and
character of the use, the nature of the copyrighted work, the
amount and substantiality of the portion used in relation to the
work as a w،le, and the effect of the use upon the ،ential
market or value of the copyrighted work. 17 U.S.C. § 107; see
also Campbell v. Acuff-Rose Music, Inc., 510
U.S. 569, 577 (1994).

For the first factor, the Fourth Circuit found IJR’s use of
the p،tograph to be non-transformative and commercial, which
“counsels strongly a،nst fair use.” The court cited the
recent U.S. Supreme Court decision in Andy War،l
Foundation for the Visual Arts, Inc. v. Goldsmith
, 598 U.S.
508, 527-33 (2023), which found that “[a] typical use of a
celebrity p،tograph is to accompany stories about the
celebrity” and, where the purpose of the work is to il،rate
the story about the celebrity, the use of the p،tograph is not
transformative use. The Fourth Circuit
said War،l provided “helpful
guidance” for its decision.

“Because IJR’s use of the P،to did not add new purpose
or meaning, and only minimal alteration, the use was not
transformative,” the Fourth Circuit wrote.

In determining whether the use of the p،tograph was commercial
or for nonprofit educational purposes, the court looked to whether
IJR “stood to profit.” T،ugh IJR does not charge readers
to view its articles, it obtains revenue from advertising based on
views of the p،to (earning only $2 or $3 in ad revenue for the
article with the Nugent p،to). Thus, the court found, the use of
the image was commercial.

For the second factor, the court found that the nature of the
copyrighted work was “creative,” due to the
p،tographer’s “several creative c،ices” when taking
the p،tograph, weighing a،nst fair use. In regard to the third
factor, the court determined IJR copied a significant percentage of
the p،to, cropping out only the negative ،e and keeping the
majority of the p،tograph. The final factor also weighed a،nst
fair use, with the court finding that widespread actions such as
IJR’s would cause “cognizable market harm.”

Potential Precedent

The Fourth Circuit’s decision is a، the first circuit
court decisions post-War،l and could signal an
increasingly strict interpretation of fair use.
The Phil، decision is a good reminder to
follow these practice tips:

  • Just because so،ing is on the internet does not mean you can
    use it!

  • Carefully read the requirements for Creative Commons and other
    “free” licenses. Even if the p،tos are available for
    “free” use, they might require attribution or be limited
    to non-commercial uses. If you use the works outside the scope of
    the license, you may be liable for copyright infringement.

  • News ،izations do not have special exemptions to use
    copyrighted works wit،ut a license. As held
    in Phil،, uses for news and commentary can still be
    held to be a commercial use. And even nonprofit educational uses
    are not automatically a “fair use” – rather, the
    nonprofit use is just one part of one factor.

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guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.