In 2016, the defendant IJR revealed an article/listicle titled “15 Indicators Your Daddy Was a Conservative.” One signal is listening to Ted Nugent. (I belief who Ted Nugent is, even when the Fourth Circuit panel did not). IJR illustrated the purpose with Philpot’s photograph of Ted Nugent with some slight cropping on the prime and backside:
In 2013, Philpot uploaded the photograph to Wikimedia Commons, which is ruled by the usual Artistic Commons license requiring attribution. The defendant didn’t give the desired attribution. Philpot sued in 2020 over the 2016 IJR publication, i.e., after the three 12 months statute of limitations that nobody appears to care about post-Petrella. (In principle, Philpot could solely have the ability to get 3 years of damages, however such a cap gained’t matter on this case).
Philpot claims his normal photograph licensing payment is $3,500, however reuses of the photograph from Wikipedia Commons didn’t require any cost (simply attribution). The IJR “article generated roughly $2 to $3 in promoting income for IJR based mostly on the variety of web page views it obtained.”
The district courtroom granted abstract judgment to IJR. The Fourth Circuit reverses.
Nature of Use. “IJR has much less of a case for ‘transformative’ use than the Andy Warhol Basis did in Warhol. Not like the orange dubbing in that case, IJR didn’t alter or add new expression to the Nugent Picture past cropping the unfavourable house.” The district courtroom discovered transformativeness as a result of the protection positioned the photograph in a brand new context. The appeals courtroom doesn’t see it. “Philpot took the Picture to establish Nugent. IJR used the Picture for exactly the identical purpose: to depict ‘The Nuge.’”
The courtroom additionally says the photograph use was industrial. That is what I name a “industrial editorial use”–ad-supported editorial content material. Courts routinely break up on whether or not industrial editorial use is industrial for honest use functions. Right here, the courtroom says “IJR’s use of the Picture was exploitative: Philpot licensed the Picture, and IJR didn’t pay the customary worth of direct attribution to Philpot.” Be sure you didn’t miss that: Philpot’s license “worth” was attribution, not money.
Nature of the Work. This was a live performance photograph. The courtroom says it’s the product of inventive selections, so it’s entitled to “thick” copyright safety. From my view, a photograph of a real-time occasion by no means ought to be given “thick” copyright safety.
Quantity Taken. “IJR copied a big proportion of the Picture in its article, and it solely cropped out the unfavourable house whereas holding the Picture’s expressive options, or the ‘coronary heart’ of the work.”
Market Impact. IJR argued that Philpot offered free licenses to the work. The courtroom says it presumes hurt with a industrial non-transformative use. Ugh. Additional, “if IJR’s challenged use turns into uninterrupted and widespread,” it hurts Philpot’s potential market of licensing to media retailers. Philpot “depends on attributions or funds from customers of his photographs to maintain himself on this planet of live performance pictures.” Besides, attribution and cost aren’t the identical factor.
What’s Philpot’s most potential damages right here? Precise damages ought to be trivial. Philpot permitted CC-licensed reuses of the photograph without spending a dime, topic to attribution. Philpot wasn’t trying to maximize his money stream from this photograph. From the protection facet, the photograph was only one piece of a multi-piece article that was solely value $2-$3 in complete. There isn’t any affordable circumstance the place the protection would have paid any payment to license the photograph. As a substitute, IJR would have saved on the lookout for a “free-to-use” photograph of The Nuge or simply skipped including a photograph completely.
As a result of Philpot was prepared to license the photograph without spending a dime, Philpot’s solely “hurt” was any reputational or financial profit he would have gotten from the omitted attribution. With respect to attribution from a listicle that solely generated $3 of income, these attribution advantages had been de minimis and wholly speculative.
It is a great distance of claiming that Philpot’s precise damages shouldn’t be measured by his industrial royalty price of $3,500 as a result of that transaction by no means would have occurred. It ought to be measured by the financial worth to IJR. If IJR provides 100% of its financial profit from the article, Philpot ought to get lower than $3 in precise damages.
As a substitute of precise damages, Philpot could dream of huge statutory damages. The courtroom ought to think about the Wikimedia Commons availability and the $3 of income in setting the statutory damages. I might be shocked if statutory damages had been greater than the $3,500 licensing payment; and I might not be shocked in the event that they had been the $750 minimal.
Even when Philpot will get statutory damages or his licensing payment as precise damages, the prices of adjudicating this case to the Fourth Circuit after which spending extra on remand certainly overwhelms these damages. At this level, it looks like this case is about attorneys’ charges. If the decrease courtroom doesn’t award them, then Philpot made a horrible financial determination. If I had been the decrease courtroom choose, seeing Philpot taking this case on enchantment for a $3 article fairly than working in the direction of an affordable settlement, there is no such thing as a approach I might award him attorneys’ charges.
The ridiculously low financial stakes of this case are what the CCB was designed to deal with. This case was filed earlier than the CCB existed, so Philpot didn’t have that alternative. I checked on Friday morning, and I didn’t see any CCB instances filed by Philpot.
We’re nonetheless assessing the implications of the Warhol determination. My query: would this case have reached the identical consequence pre-Warhol? Earlier than Warhol, courts have break up on honest use in conditions like this, the place a barely modified photograph is used for instance a listicle. From my perspective, the minimal cropping on this case won’t have been sufficient modifications to represent “transformative” use within the pre-Warhol jurisprudence.
Then again, the Fourth Circuit sided with Philpot on all judgment calls, and it in any other case deployed anodyne evaluation of the equities on this case, none of which pointed to Philpot. This strategy might need mirrored a extra pro-copyright bent motivated by the tenor of Warhol. With out the pro-copyright indicators despatched by Warhol, I might think about different courts subjecting Philpot’s honest use arguments to extra rigorous scrutiny given his litigation over CC-licensed pictures and the ridiculously trivial financial stakes of this case.
Case quotation: Philpot v. Independent Journal Review, No. 21-2021 (4th Cir. Feb. 6, 2024)