Copyright

The Supreme Court's decision in Andy Warhol Foundation v. Goldsmith[ref]598 U.S. 508 (2023)[/ref] 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,[ref]2024 WL 442066, Fourth Circuit Court of Appeals (2024)[/ref] 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[ref]Id. at 1-2[/ref]

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.'"[ref]Philpot v. Independent Journal Review 2021 WL 3669321 E.D. Va. 2021 (Not reported in F. Supp.)[/ref] 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.[ref]Has This Court Decision Rendered the Creative Commons License Unenforceable?[/ref] 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."[ref]Philpot v. Media Research Center, 2018 WL 339142 U.S. District Court for the Eastern District of Virginia 2018[/ref] 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,[ref]922 F.3d 255 (4^th Circuit 2019)[/ref] which I covered in a previous blog post.[ref]"Fair Use is Not Designed to Protect Lazy Appropriators" Rules Court of Appeals[/ref] There, the Court rather pungently ruled that fair use was not designed "to protect lazy appropriators."[ref]922 F.3d 255 (4^th Circuit 2019)[/ref] 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…"[ref]2024 WL 442066, Fourth Circuit Court of Appeals (2024)[/ref] 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.

January 26, 2024 saw a jury return one of the most head-scratching copyright verdicts in recent memory. It ruled that a photograph and resulting tattoo of jazz icon Miles Davis, despite being hailed by the Defendant as being "identical," were somehow not substantially similar to each other. Under normal circumstances, I do not criticize jury verdicts. The jury hears all the evidence, not just what is reported in the press and online. Yet here, the visual evidence is so compelling, and freely available, that it has led copyright scholars to openly question the result.[ref]Jury finds Kat Von D tattoo does not infringe. But stand by.[/ref] The case arises from a photo of Miles David by photographer Jeff Sedlik, which was used, at the very least, as an "artist reference" by tattoo artist Katherne Von Drachenberg, professionally known as "Kat Von D." Here is the original photo by Sedlik:

Here is a screengrab from a video showing Kat Von D tracing the photograph using a lightbox:

Here is a photo of Kat Von D inking the tattoo. Note the subject photograph is in the background. Here is a side-by-side comparison of the photograph and finalized tattoo:

Here is an Instagram Post from High Voltage Tattoo (Kat Von D's studio, since closed[ref]Kat Von D sued for thousands as she shuts down famous tattoo parlor[/ref]) stating that tattoos and references are identical:

Now, I ask you: are the two images not substantially similar? Especially where there is evidence of direct copying? Even further, should the question of substantial similarity even have been put before a jury? Existing 9^th Circuit case seems to indicate that the answer is no. "A finding that a Defendant copied a Plaintiff's work, without the application of substantial similarity analysis, has been made only when the Defendant has engaged in virtual duplication of a Plaintiff's entire work. (Citations omitted)… In those cases a substantial similarity analysis was unnecessary because the copying of the entire work was admitted. The infringement issue turned on whether the material constituted protected expression."[ref]Narell v. Freeman 872 F.2d 907 (9th Cir. 1989[/ref] (N.B. Some have suggested that this holding is in question after the 9th Circuit decision in Skidmore v. Led Zeppelin, but having re-read that case, I don't follow this reasoning.) Nevertheless, the Court denied summary judgement and sent the question to the jury. This is the jury instruction on substantial similarity given by the Court: "For the extrinsic test, you are to examine the similarities between what is protected by copyright law in the Miles Davis Photograph, on the one hand, with each of the accused infringements, on the other hand. Photographs can be broken down into elements that reflect the various creative choices the photographer made in composing the image. These creative choices are elements such as the photograph's subject matter, pose, lighting, camera angle, depth of field, and almost every other variant involved in the works. The individual elements standing alone are not copyrightable. But if sufficiently original, the combination of subject matter, pose, camera angle, etc., receives protection as original expression. It is the plaintiff's burden to identify the particular combination, selection, or arrangement of elements in his photograph that he claims is protected by copyright law. He must show that each of the accused infringements is substantially similar to this particular combination, selection, or arrangement. If there is no substantial similarity at this first step, then the plaintiff has not met his burden."[ref]Jury instruction No. 20[/ref] Whew. That's a lot of explanation. In any event, put more simply, if a tattoo is of Miles Davis, then the finished product needs to look something like Miles Davis, an element not subject to Sedlik's copyright. The rest of it, particularly the "pose," does seem to be the subject of Sedlik's copyright, and moreover was copied exactly. Just how confused was the jury? A lot it seems. After finding down the line that Kat Von D's work was not substantially similar to Sedlik's photo, that should have ended the case. The jury form instructs the jury not to answer any remaining questions to which the answer was "no" on substantial similarity. Yet the jury plowed on. It was given 10 examples of uses and whether they were fair use. Remember, having found no substantial similarity at all, it was not to answer any duplicate of these questions. Yet it found "fair use" on 4 out of the 10 cited uses. Of particular note is that "Final Tattoo Social Media Posts" exhibits 209, 210 and 211, were all found to be not substantially similar, but the jury then ruled that these exact same uses (exhibits 209, 210 and 211) were "Fair Use." Let's remember that fair use is an affirmative defense. In order to find that a certain use was fair use, it would have to have found that the use was otherwise copyright infringement. The jury's verdict in essence contradicts itself. So, what are the prospects on appeal? Courts are all over the map on whether substantial similarity is a question of law or fact. Some say it's even a mixed question of law and fact. But in any event, a question of law is reviewed by a Court of Appeals de novo, without any deference to the trial Court decision. A question of fact is reviewed for being "clearly erroneous," if made by a Judge. This would apply to the denial of Selik's summary judgement motion. Jury verdicts are harder to overturn. They are subject to a mere "reasonableness" standard. "The reasonableness standard of a jury verdict is generally for the verdict to stand unless no substantial evidence supports the decision."[ref]Identifying and Understanding Standards of Review[/ref] Having seen the evidence, (and now you have seen it too), I for one could very much see a reversal from the 9^th Circuit Court of Appeals.