Photographer Larry Philpot won an unusual copyright infringement lawsuit over his 2013 photo of musician Ted Nugent. He secured copyright protection but, interestingly, also released the photo under Creative Commons.

After taking the photo, Philpot registered it with the U.S. Copyright Office in 2013 as part of unpublished works. As PetaPixel reports, he published the same photo on Wikimedia Commons under a “Creative Commons Attribution-Share Alike 3.0 Unported” license. The license allowed anyone to use the photo for free if they attributed the photographer. And this is where “the catch” lies.

When you click “download” on Wikimedia Commons, you’ll get the proper credits you need to include with each photo. For this one, it reads:

Nightshooter. Attribution: Photo Credit: Larry Philpot of www.soundstagephotography.com, CC BY-SA 3.0, via Wikimedia Commons

However, things took a turn in 2016 when the Independent Journal Review (IJR) published an article titled 15 Signs Your Daddy Was a Conservative, featuring Philpot’s photo. The article only linked to Nugent’s Wikipedia page where the image appeared. Unfortunately, this doesn’t count as appropriate credit. So, in 2020, Philpot filed a copyright infringement lawsuit against IJR.

The legal battle

After the lawsuit, a federal judge initially sided with IJR, ruling their use constituted “fair use” due to the new context created by the article. However, Philpot wasn’t deterred. He appealed the decision, and the tide began to turn. The U.S. Court of Appeals reconsidered the case in light of a recent Supreme Court ruling: Andy Warhol Foundation v. Lynn Goldsmith.

Armed with this new legal landscape, Philpot’s appeal proved successful. In February 2023, the Court of Appeals reversed the initial ruling. The court found that IJR’s use didn’t qualify as fair use under the adjusted standard. So, Philpot ultimately won the case.

This case wasn’t an isolated incident. Following the Supreme Court’s decision in the Warhol case, photographer Jeff Sedlik took a celebrity tattoo artist, Kat Von D, to court. Sedlik claimed copyright infringement over an image of a Miles Davis tattoo. However, in this case, Kat Von D ended up winning.

These developments highlight the ongoing impact of the Warhol case on copyright law.  It seems the court’s refined definition of “fair use” is finally giving photographers more teeth when it comes to protecting their work.

[via PetaPixel]