Copyright's fair use doctrine has long balanced a creator's control over their work against the public's interest in commentary and reuse.

A recent district court ruling tests how far that balance can shift when the surrounding words, not the image itself, do the work of transformation.

Jim Flynn, Managing Director and Member of the Firm in the Litigation and Employment, Labor & Workforce Management practices, authored "Blogga, Don't Take My Kodachrome (Without My Okay): SokolskyFilm, Fair Use, and Why Context Might Soon Be Everything In Copyright." in ILN IP Insider.

Jim examines SokolskyFilm, Inc. v. Lauren Messiah Inc., a June 2026 Central District of California decision finding that a blogger's unaltered, unattributed use of a full Sokolsky fashion photograph was fair use because the surrounding styling commentary gave the image a different purpose. He walks through all four Campbell factors, noting the court found the unmodified photo "insubstantial in context" once framed by independent text, a move he contrasts with Warhol v. Goldsmith and traces through Justice Kagan's dissent and Justice Gorsuch's concurrence in that case. Jim flags that the ruling is on appeal to the Ninth Circuit, with opening briefing due in October 2026, and that its treatment of the third fair use factor could reshape how courts weigh full, unmodified reproductions of photographs going forward.

Who wins under SokolskyFilm? It seems like there are three groups of winners: Bloggers, content creators, and media companies who republish photographs in new contexts with surrounding commentary or styling advice. Educators and platform operators who can argue that photographs are used in a "transformative context." Influencers and lifestyle brands who can frame photographs as part of a broader narrative or styling guide.

Who loses under SokolskyFilm? Conversely, there also seem like three groups of losers: Individual photographers and photographers' estates, particularly those whose work is popular and frequently reproduced in online contexts. Artists whose photographs are used for "inspiration" or "mood boarding" on social media platforms. Copyright holders who license photographs for specific uses, only to find competitors using the same images under a "context transformation" theory.

Get in Touch

To learn more about this topic, contact James P. Flynn at jflynn@ebglaw.com.

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