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Nugent Photo Copyright Dispute Offers Appellate Look at Post-Warhol Fair-Use Analysis
The U.S. Court of Appeals for the Fourth Circuit ruled that a copyright infringement claim against a news site, for using a photo of musician Ted Nugent without credit, could proceed, one of the first federal appellate decisions interpreting the U.S. Supreme Court's most recent iteration of the fair use test.
Court-watchers said the appellate court's decision in Philpot v. Independent Journal Review (IJR), 21-2021, might signal that lower courts will, in general, take an increasingly tough stance against using unlicensed photos in publications following the U.S. Supreme Court's decision in Andy Warhol Foundation for the Visual Arts Inc. v. Goldsmith, 14 S.Ct. 1258 (2023). There, the high court held the Andy Warhol Foundation infringed on photographer Lynn Goldsmith's copyright by creating silk-screen portraits based on her picture of the singer Prince, partly because the work wasn't transformative enough.
"Fair use is a notoriously difficult and fact-specific analysis, and the Supreme Court's decision in Warhol did little to un-complicate it," said Cindy Gierhart, a Holland & Knight partner whose practice is focused on media, trademark, copyright and entertainment law.
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