In Brief:   A Creative Commons license is enforceable just like any other license.

Here’s What Happened:  

Larry Philpot, a professional photographer, photographed Ted Nugent at a concert in July 2013. In August 2013, Larry registered the photograph with the US Copyright Office. He published the photograph on Wiki Commons under a Creative Commons License. A Creative Commons License has varying degrees of conditions on the use of a work. In this case, Larry specified that that anyone could use the photograph for free as long as they provided the following attribution: “Photo Credit: Larry Philpot of”

In 2016, Independent Journal Review (IJR) published an article titled, “Signs Your Daddy Was a Conservative.” One of the “signs” listed in the article was whether “your daddy” was a fan of “The Nuge.” The article used Larry’s photo. IJR didn’t include the required attribution. Instead, IJR included a link to Nugent’s Wikipedia page, which in turn linked to the Wiki Commons site where the photograph was hosted with the proper attribution. 

Larry sued IJR for copyright infringement. IJR moved for summary judgment based on its fair use defense and alternatively for a finding that Larry’s registration was invalid. Larry brought his own motion for summary judgment that his registration was valid registration and that IJR’s use wasn’t fair use. The district court found that there was a genuine issue of material fact regarding the validity of Larry’s registration but granted IJR’s motion for summary judgment of fair use. Larry appealed.

Although the 4th Circuit addressed the invalidity of the registration last, it pays to look at it first. The crux of IJR’s argument was that Larry applied for registration of the photograph as an unpublished work. But Larry had entered into an agreement prior to registration for use of the photo (among others). The Court held that the agreement did not result in publication of the work. So the work was unpublished at the time that Larry applied for copyright registration. The registration was valid.

The Court determined that IJR’s use of the photo was not fair use. Looking at the four factors of fair use:

1. Purpose and character of the use: A secondary use is transformative when it has a “further purpose or different character” than the original work. The larger the difference is, the more likely a court is to find that the use constitutes “fair use.” The Court disagreed with the district court’s finding that the work transformative because IJR placed the photo in a new context (i.e., a list of “Signs Your Daddy Was a Conservative.”) The Court found that IJR’s use was not transformative because the two uses “shared substantially the same purpose,” which was to depict Ted Nugent. So this factor weighed against fair use.

2. Type of work: Without much discussion, the Court found that this factor weighed against fair use.

3. Amount of the work used: Without much discussion, the Court found that this factor weighed against fair use. IJR used the entire photo so it would have been hard for them to argue that they only used as much of the photo as they needed for the article.

4. Whether use was commercial: The issue for this factor was whether IJR’s use was commercial. IJR argued that it only made a few dollars from the article. But this factor weighs how use would affect the market for the work not how much IJR made off of the use of the photo. All Larry asked for was attribution. Attribution would elevate his business as a photographer. Thus, the lack of attribution would have an adverse effect on the market.

Why You Should Know This: A Creative Commons License can require anything from a license fee to free use. There are various levels of terms along the way. In this case, the burden on IJR to properly attribute the photo to Larry wasn’t very high. All they had to do is look it up.

Note, however, attribution is not a defense to copyright infringement in other circumstances.

Case Information: Philpot v. Independent Journal Review, 92 F.4th 252 (4th Circ. 2024).

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