“Lazy Appropriators” Beware: The “Warhol” Fair Use Standard Takes Hold

Stephen Carlisle February 29, 2024

The Supreme Court’s decision in Andy Warhol Foundation v. Goldsmith ¹ was a breath of fresh air that provided much needed guidance on the issue of fair use. Moreover, it reigned in the overbroad standard of “transformativeness” that had plagued court decisions for years. Never has this been more apparent than a recent case out of the 4^th Circuit Court of Appeals that reversed a District Court finding of fair use. What was notable was that the case is virtually identical, as to the facts, as to the type of work copied, as to the type of use by the Defendant, brought by the exact same Plaintiff, that six years earlier had been found to be fair use.

The recent case is Philpot v. Independent Journal Review, ² and the facts are as follows:

• Plaintiff Philpot is a professional photographer whose specialty is concert photos of rock musicians
• He took and registered a photograph of guitarist Ted Nugent and registered same with the Copyright Office
• He made the photo available through a Creative Commons license, which required that all uses provide Philpot with attribution
• Defendant IJR republished the photograph of Nugent to accompany the article “15 Signs Your Daddy Was a Conservative”
• Defendant did not alter the photo except slight cropping to eliminate negative space
• Defendant did not provide the required credit, instead linking to Nugent’s Wikipedia page ³

The Court below had held that this was fair use, stating the use “was part of a commentary on issues of public concern that placed it in a ‘new context to serve a different purpose.’ As such, the Photograph had a ‘transformative use.’” ⁴

This reasoning simply beggars belief. It’s the same photograph. Slightly cropped, used for the same purpose: to picture Ted Nugent. The use says nothing about Nugent and says nothing about the photograph itself.

Needless to say, this all rang a bell with me, as well it should. A previous suit by Philpot on the exact same facts, Philpot v. Media Research Center, was also dismissed as fair use. I highly criticized the decision in this blog post. ⁵

The only difference between the two cases was that the photos in the previous case were of Kenny Chesney and Kid Rock. The off-base reasoning was the same:

“[P]laintiff took the Chesney and Kid Rock Photographs to depict the musicians in concert. (citation omitted) Had defendant used the Chesney and Kid Rock Photographs alongside articles about the concerts depicted, then that use might not have been transformative. But importantly, defendant here used the Photographs in a completely different context, namely to identify these celebrities as pro-life advocates or conservative candidates for office.” ⁶

So what happened? Well, Warhol happened.

The Fourth Circuit explained that it could have reversed based upon its prior ruling in Brammer v. Violent Hues, ⁷ which I covered in a previous blog post. ⁸ There, the Court rather pungently ruled that fair use was not designed “to protect lazy appropriators.” ⁹

But the real impact of Warhol is brought front and center by the Court.

“The Supreme Court’s recent opinion in Andy Warhol Foundation for the Visual Arts v. Goldsmith provides helpful guidance… It then held that even if Orange Prince added new expression to the original photo, the magazine’s use was not transformative because the purpose of both works was to illustrate stories about Prince.

Like the magazine’s use of Orange Prince in Warhol, IJR’s use of the Photo was not transformative. Here, as in Warhol, Philpot took the Photo to capture a ‘portrait[ ]’ of Nugent, and IJR used the Photo to ‘depict’ the musician. (Citation omitted). Accordingly, the two uses ‘share[d] substantially the same purpose.’ Id. Indeed, IJR has less of a case for ‘transformative’ use than the Andy Warhol Foundation did in Warhol. Unlike the orange dubbing in that case, IJR did not alter or add new expression to the Nugent Photo beyond cropping the negative space…” ¹⁰

So the takeaway is this: if the purpose of the photograph is to depict Ted Nugent, it does not matter if the article is about Nugent the musician, Nugent the bow and arrow hunter, or Nugent the conservative political activist. The purpose of the use is the same and it’s not fair use.

Lazy appropriators, you have been warned…a second time.