District court holds that website’s use of plaintiff’s photographs of recording artists Kenny Chesney and Kid Rock in connection with reporting about pro-life celebrities and conservative celebrities running for political office was transformative and constituted fair use.

Photographer Larry Philpot commenced an action in 2017 against the conservative nonprofit organization Media Research Center Inc., asserting a claim for copyright infringement in connection with MRC’s use of two of Philpot’s photographs on its website. Philpot had uploaded the photographs to Wikimedia and made them freely available for use by the public subject to a nonexclusive Creative Commons license that conditioned their use on attribution to Philpot as their creator. MRC subsequently included the first photograph, depicting recording artist Kenny Chesney in concert, with an article on its website discussing celebrities who hold pro-life views, and later used the second photograph, which depicted recording artist Kid Rock in concert, with an article on its website discussing Kid Rock’s planned U.S. Senate campaign. Neither article attributed the photographs to Philpot.

MRC moved for summary judgment dismissing the infringement claim, and the district court granted the motion. As an initial matter, the court disposed of MRC’s argument that Philpot had waived his right to sue for copyright infringement because he had licensed the photographs. It held that although MRC used Philpot’s photographs subject to the Creative Commons license, that license terminated when MRC breached its terms by failing to attribute the photographs to Philpot, and MRC’s continued use of them constituted grounds for infringement.

Nonetheless, the court agreed with MRC that its publication of the photographs constituted “fair use.” The court determined that the first factor in the fair use analysis — the purpose and character of the use — weighed in favor of MRC. It held that MRC’s use of the photographs was transformative because Philpot created the photographs to depict the musicians in concert, whereas MRC used them to report and comment on issues of public concern, namely to inform citizens about pro-life celebrities and conservative celebrities running for political office. MRC’s use, the court stated, “tells new stories” about the photographs’ subjects instead of simply rehashing their identities as musicians. Although Philpot argued that he also created the photographs to visually enhance articles about the musicians, the court rejected this argument as contrary to the evidence and held that, even if true, it did not diminish the transformative nature of the use, which was “plainly ... for the socially beneficial purpose[ ] of conveying a political message.” The court also held that MRC’s use of the photographs was “not essentially commercial” because it had received less than $100 in advertising revenue and donations in connection with each of the articles featuring those photographs and offered access to its website for free.

The court determined that the second fair use factor — the nature of the copyrighted work — was neutral. Although fair use is more likely to be found in factual works than in creative works, the court stated, Philpot’s photographs were both factual (insofar as they depicted Chesney and Kid Rock in concert) and creative (insofar as Philpot made judgments about lighting, angle and lens speed when capturing the photographs).

The court concluded that the fair-use third factor — the amount and substantiality of the portion used in relation to the copyrighted work as a whole — weighed in Philpot’s favor because MRC used the entire Chesney photograph and only slightly cropped Philpot’s photograph of Kid Rock.

As to the fourth factor — the effect of the use on the potential market for or value of the copyrighted work — the court determined it weighed in favor of MRC primarily because Philpot admitted that he had offered use of the photographs for free on Wikimedia. Although Philpot argued that his intent in offering use of the photographs for free was to gain fame through attribution and thereby make his photographs more valuable, the court rejected this argument. It stated that the fourth factor considers only whether the use produces a harm that is cognizable under the Copyright Act, and the Act does not provide an exclusive right to attribution. Furthermore, the court held, because MRC’s use was not commercial, Philpot was required to demonstrate concrete market harm, and the “speculative future harm from a lack of attribution” was insufficiently concrete.

Considering the four factors collectively and according greater weight to the first and fourth factors as “most important,” the court held that MRC demonstrated fair use as a matter of law and granted its motion for summary judgment.