Hearting The Nuge

The United States Court of Appeals for the Fourth Circuit reversed the grant of summary judgment to a defendant who had used plaintiff’s photo of Ted Nugent and granted summary judgment to the plaintiff

Photographer Larry Philpot brought a copyright-infringement claim against news website Independent Journal Review (“IJR”) after IJR used his photograph of musician Ted Nugent in an online article. IJR moved for summary judgment, raising the affirmative defense that, pursuant to 17 U.S.C. § 107, its use of the photo constituted “fair use” under the Copyright Act. It alternatively argued that Philpot’s copyright registration was invalid.

Philpot cross-moved for summary judgment, contending in relevant part that his registration was valid and that IJR’s use was not fair use. Although the district court found a dispute of material fact as to whether the copyright registration was valid, it granted summary judgment to IJR on “fair use” grounds. Philpot appeals the denial of summary judgment to him as to the copyright registration and the grant of summary judgment to IJR as to “fair use.”

We conclude that IJR’s use of the photo was not “fair use.” And we conclude that Philpot is entitled to summary judgment on the validity of the copyright registration. Therefore, we reverse and remand for further proceedings consistent with this opinion.

Use

In 2016, IJR posted an article titled “15 Signs Your Daddy Was a Conservative.” J.A. 289. Under Sign 5, “He hearts ‘The Nuge’”—referring to Ted Nugent—the article featured the Photo. J.A. 38. The article did not include the required attribution. Instead, the article contained only a hyperlink to Nugent’s Wikipedia page. Through that link, users could then access the “Wiki Commons site where the Photograph was hosted with all the required attribution information.” Philpot v. Indep. J. Rev., No. 1:20-cv-00590-AJT-TCB, 2021 WL 3669321, at *2 (E.D. Va. Aug. 18, 2021). The article generated approximately $2 to $3 in advertising revenue for IJR based on the number of page views it received.

Not in the public domain

This is instead 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.

Copyrights

the Agreement did not constitute publication of the Photo. IJR does not point to any other basis on which we could conclude that Philpot published the Photo before August 15, 2023. Thus, IJR has not pointed to any inaccuracy in Philpot’s copyright registration, and Philpot is entitled to summary judgment on IJR’s defense of copyright invalidity.