No Free For All: Fourth Circuit Rules in Favor of Photographers’ Rights

By Robert D. Michaux

Federal judicial caseload statistics from U.S. courts indicate a decline in the number of appeals concerning intellectual property filed in and pending before federal appellate courts over the last decade. Only a small fraction of rulings by federal appellate courts are formally published, with unpublished opinions having no legal weight as binding precedent. The Court of Appeals for the Fourth Circuit’s recent opinion in Philpot v. Independent Journal Review, Case No. 21-2021 (4th Cir. Feb. 6, 2024), is, therefore, a rare specimen—a published opinion concerning intellectual property rights.

Larry Philpot, a professional photographer who specializes in capturing musicians in concert, sued news website Independent Journal Review (IJR) for copyright infringement after IJR used his photograph of musician Ted Nugent without permission in an online article. IJR moved for summary judgment on the affirmative defense of fair use and, alternatively, that Philpot’s copyright registration was invalid. Philpot also moved for summary judgment, contending the registration was valid and that IJR’s use was not a fair use. Though the district court determined the validity of the registration was a disputed issue of material fact, denying Philpot’s cross motion, it granted summary judgment to IJR, finding fair use applied. On appeal, however, the Fourth Circuit reversed and remanded the case, concluding that IJR’s use of the photo did not constitute fair use and that Philpot was entitled to summary judgment as to the validity of his copyright registration.

In 2013, Philpot registered his photograph of Nugent with the U.S. Copyright Office as part of a collection of unpublished works. After receiving a registration certificate, Philpot published the photo on Wikimedia Commons under a Creative Commons license that required attribution to the photographer. Before filing for copyright registration, Philpot also entered into a licensing agreement with a third party, AXS TV, for a $4,500 fee. That licensing agreement allowed AXS TV to select for licensing to third parties a dozen photos out of a thousand. AXS TV did not, however, have an automatic right to license a photo to third parties (including this photo), but had to go back to Philpot for a second license for any public distribution.

In 2015, IJR posted an article that included a copy of the photo. The article did not include the required attribution to Philpot but did have a link to Nugent’s Wikipedia page that provided access the Wiki Commons site where it was hosted with the required attribution. Curiously, the article generated less than $5 in ad revenue for IJR.

The Copyright Act codifies fair use as a complete defense to allegations of copyright infringement. Courts use a four factor test to determine whether the unauthorized use of a copyrighted work constitutes a fair use: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107. The Fourth Circuit disagreed with the lower court, finding all four fair use factors weighed against IJR.

Although this published opinion reinforces the importance of fair use principles and the protection afforded to creative works, it may have more significance for answering the question of whether an offer of distribution constitutes publication under the Copyright Act. A work is “published” for purposes of the Copyright Act when an individual “offer[s] to distribute copies or phonorecords [of the work] to a group of persons for purposes of further distribution . . . or public display.” 17 U.S.C. § 101.

Philpot applied for copyright registration of the photo as part of a collection of unpublished works, but IJR contended that the photo had been previously published, invalidating Philpot’s copyright registration.

IJR argued the photo was published through Philpot’s agreement with AXS TV. But the Fourth Circuit determined the AXS TV agreement contained no offer to distribute or publicly display copies of the photo to AXS TV. To the contrary, the court found that the agreement merely granted a limited license to select 12 photos from the 1,000 Philpot submitted to AXS TV for further licensing and public distribution. According to the court, “[t]his is [] a classic case where Philpot offered to share his work with AXS TV, a ‘definitely selected’ group, for the ‘limited purpose’ of its examination and review, without any right to further distribution.” Concluding otherwise, the court reasoned, would constitute a publication and relinquishment of Philpot’s rights in a thousand photos.

The AXS TV photo licensing agreement would seem parallel in the traditional print world to an author circulating a book manuscript to a publisher for its consideration, but with a subsequent publishing agreement required before any public distribution of the book occurs.

This opinion clarifies that even limited distribution agreements might not constitute publication, allowing photographers to maintain copyright protection over their works. It also serves as a reminder for news websites and other content creators to obtain proper permissions and comply with agreeable license terms before using material protected by copyright.

Practice areas related to this topic include:

Intellectual Property

This item has been provided as an informational service and does not constitute legal counsel or advice, which can only be rendered in the context of specific factual situations. If a legal issue should arise, please contact an attorney listed or retain the assistance of other competent legal counsel. Case results depend on a variety of factors unique to each case and results do not guarantee or predict a similar result in any future case undertaken.