SokolskyFilm, Fair Use, and Why Context Might Soon Be Everything In Copyright 

By James P. Flynn, Epstein Becker Green 

They give us those nice bright colors/Give us the greens of summers 
Makes you think all the world’s a sunny day, oh yeah/I got a Nikon camera 
I love to take a photograph/So momma don’t take my Kodachrome away 

[KodaChrome by Paul Simon] 

When the U.S. District Court for the Central District of California decided SokolskyFilm, Inc. v. Lauren Messiah Inc. on June 16, 2026, a few familiar phrases came to mind, with some of my own twists joining them.  For instance, I thought of “a picture is worth a thousand words,” but a thousand words of surrounding context might diminish that photo’s worth to the photographer.  Likewise, Helen’s may have been a face that “launched a thousand ships,” but this decision is one that will launch a thousand questions.   And its beauty will remain, as it often does, in the eye of the beholder.   

That is because SokolskyFilm should interest anyone who believes that copyright protection for photographs matters, especially for original, creative photographic works.  The SokolskyFilm court held a blogger’s unattributed and unlicensed use of a full, unmodified Sokolsky photograph (known as the Parker Train Photo) constituted fair use under 17 U.S.C. § 107.  Photographers and their counsel reading the printed words in this opinion might very well conclude that “everything looks worse in black and white,” as Paul Simon would say (or sing). 

  1. The Backdrop: The Photographer & The Blogger 

Before diving into the legal analysis, let’s set the context (an intentionally chosen word as you will see). 

In October 1962, Melvin Sokolsky was an internationally recognized fashion photographer whose work had graced the Museum of Modern Art and the Louvre.  He took a photograph at that time that would eventually, as noted above, become known as the “Parker Train Photo.” It captured the interior of a train car with passengers in what appeared to be vintage clothing, shot in the photographer’s distinctive style. The image was taken as part of a larger photoshoot, and a portion of the photo was later featured in a 1963 McCall’s Magazine advertisement for women’s fashions titled “Cloak and Swagger Fashions.” Decades later, in 2000, that same photograph appeared in Seeing Fashion, a book compiling Sokolsky’s photographic work, and was registered with the U.S. Copyright Office. 

Fast forward to November 2009. Lauren Messiah, a fashion blogger and aspiring style maven, conducted a Google Images search for “army fashion” and found the Parker Train Photo. She downloaded it, saved it to her desktop with the filename “melvin-sokolsky5.jpg.”  That filename, obviously, embedded the photographer’s name, yet she posted it to her “Ask Fashion Kitty” blog without license or attribution in a post titled “Style Suggestions for Army Wives.”  

She did not modify the photograph in any way 

She simply surrounded it with text. 

The blog post asked the question: “How should she dress when greeting her husband coming back from deployment?” and Messiah answered with styling tips. The Parker Train Photo, unaltered and in its entirety, sat in the middle of this fashion advice like a visual full stop. Over the course of her career, Messiah’s styling courses, coaching services, and books generated millions of dollars in revenue. The blog post featuring the Parker Train Photo remained online until August 2025, when Messiah deleted it only after receiving a cease-and-desist letter from Sokolskyfilm, Inc. 

Then Sokolskyfilm, Inc. sued her, in essence saying (as our title suggests) that this blogger should not be able to take this KodaChrome away without pay and/or okay—in other words, the blogger needed a license.  But Sokolskyfilm, Inc. lost. 

Why?  

Context transformation. 

  1. The Foreground: The Fair Use Factors 

Understanding what context transformation means and how the court got there requires one to understand the copyright concept of fair use, which this blogger has written about many times over the years (such as here, here, here, here, here, and here, for example) 

  1. The Four Factors—And How SokolskyFilm Rewrites Them 

Copyright fair use analysis turns on four statutory factors, as established in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994): 

  • The purpose and character of the use 
  • The nature of the copyrighted work 
  • The amount and substantiality of the portion used 
  • The effect on the market for the original 

A substantial body of jurisprudence on these factors exists, particularly in cases involving photographs, images, and visual works. As was noted here in 2025, context and commentary influence fair use analysis.  That analysis turned on a relatively straightforward principle: if you take someone else’s work and use it for a transformative purpose (such as criticism, commentary, news reporting, teaching), you have a plausible fair use defense. But transformation, in the traditional sense, typically meant changing the work: adding voiceovers, editing, contextualizing within a different medium, or substantially altering its form or message. 

SokolskyFilm appears to pivot on a different axis entirely.  

Let me walk through each factor as the court analyzed it: 

  1. Factor One: Purpose and Character of the Use 

SokolskyFilm found that Messiah’s blog post was “transformative” because it provided “fashion guidance rather than commentary on what is already apparent from the Photo.” In other words, SokolskyFilm found that the use had a “further purpose or different character” than the photograph itself. The fact that the photograph was displayed in a blog post offering styling advice (alongside a question-and-answer format about what an Army wife should wear) meant, for this court, that the use was transformative, even though the photograph itself remained entirely unmodified. 

This is where SokolskyFilm begins to diverge from conventional fair use analysis. Traditionally, a photograph or other work published in a context where it receives “new” commentary or receives a secondary use has been analyzed cautiously.  

For instance, in Harper & Row v. Nation Enterprises, 723 F.2d 195, 209 (2d Cir. 1983), the court held that reproducing portions of President Gerald Ford’s unpublished memoirs in a news article was fair use because “[t]he magazine took a meager, indeed an infinitesimal amount of Ford’s original language,” which the court found was “a circumscribed use of copyrighted words.” But the 2nd Circuit emphasized that publication context alone did not transform the work itself. Id. at 207 (“mere allegations of news reporting are insufficient grounds for permitting the copying of the expression in a protected work”).  Yet, SokolskyFilm cites Harper & Row as support for its decision (at 7). 

Similarly, fair use was found in L.A. News Serv. v. CBS Broadcasting Inc., 305 F.3d 924 (9th Cir. 2002), but that finding was based on a transformation of the original work itself.  Id. at 939-40 (describing opening montage and its transformative aspects).  That court emphasized that mere re-use is not transformative fair use (“We have previously held that despite the newsworthiness of LANS’s riot videos, their mere rebroadcast was not in itself transformative…. Merely plucking the most visually arresting excerpt from LANS’s nine minutes of footage cannot be said to have added anything new.”) (emphasis in original) Yet, SokolskyFilm also cites this case (at 7). 

The reasoning echoes language from Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013, a case involving appropriation art (a topic we have addressed before, and as to which courts have held that transformative uses can insulate themselves from market-harm findings). But in Cariou, the defendant-artist had substantially modified the underlying photographs. Id. at 708 (“In twenty-five of his artworks, Prince has not presented the same material as Cariou in a different manner, but instead has ‘add[ed] something new’ and presented images with a fundamentally different aesthetic.”). 

Sokolskyfilm permitted the same result without modification. 

  1. Factor Two: Nature of the Copyrighted Work 

SokolskyFilm acknowledged that the Parker Train Photo is a creative work: a fashion photograph taken by an internationally recognized artist. Under established precedent, creative works (as opposed to factual compilations or purely informational materials) receive greater copyright protection. This factor weighed against a finding of fair use. But the court minimized this factor’s significance, noting “’typically [this factor] has not been terribly significant in the overall fair use balancing.”’ Id. at 9-10 (quoting Dr. Seuss Enters., LP v. Penquin Books, USA, Inc., 109 F.3d 1394, 1402 (9th Cir. 1997)). 

  1. Factor Three: Amount and Substantiality 

Here is where SokolskyFilm’s implications become most provocative. The SokolskyFilm court found that, while Messiah posted the “unaltered Parker Train Photo” and thus displayed the “heart” of the photograph, the photograph was “rendered insubstantial in context” because “the Parker Train Photo is the only photo in the blog post, but it is accompanied by a question-and-answer completely independent of the Photo.” Id. at 10 (emphasis added). 

Let that sink in: the full, unmodified photograph (in other words, the entire creative work) was deemed “insubstantial in context,” even when it was the greater work’s only visual art image.  And strangely, the court emphasized that the original content from Messiah was “completely independent of the Photo.”  Thus, one could argue that using the photo was unnecessary to the creative enterprise in which Messiah was engaged.  It also suggests that if Messiah had been an art photography historian or critic, and devoted the same amount of text to detailed original criticism or analysis of the unmodified photo, this court would have found the context tilting against a finding of fair use (on the theory that if complete independence is transformative, complete dependence cannot be).  But that would seem a very odd perspective to anyone seeing the words “for purposes such as criticism, comment, news reporting, teaching…, scholarship, or research” in the express statutory definition of fair use. 

  1. Factor Four: Market Effect 

SokolskyFilm noted that Messiah’s use did not “directly compete[] with” nor had it” completely usurped” the plaintiff’s market for publishing and licensing the Parker Train Photo. The court emphasized that Messiah’s blog post served a different market function (fashion advice) whereas SokolskyFilm’s market was “fine art,” with licenses reaching as much as $5,000 per use. 

  1. The Campbell Test and the Photographer’s Problem 

The implications here are significant. In Campbell v. Acuff-Rose, 510 U.S. 569 (1994), the Supreme Court held that the inquiry into fair use is inherently flexible and contextual.  Id. at 578.  This means that the four factors must be weighed together, and no single factor is dispositive. Id.  But the Court also made clear that a transformative use is central to the fair use inquiry. Id. at 579. 

SokolskyFilm appears to expand what is “transformative” to encompass not just the modification of a work, but the recontextualization of it. This is provocative because it means, in theory, that a photographer’s copyright in an original photograph could be overcome by a fair use defense, regardless of whether the photograph itself is modified. Thus, assuming it appears in a sufficiently different context, surrounded by sufficient new commentary or creative text, the the conclusion would  be “fair use.” 

Think about the implications: A commercial website could republish a full fashion photograph with new styling commentary and potentially claim fair use. An educational blog could post an entire news photograph with an analytical essay surrounding it. A lifestyle influencer could repost an artist’s photograph in a “mood board” post with lifestyle tips.In each case, the photograph remains untouched. But under SokolskyFilm‘s logic, the context provides the transformation. 

More provocatively: the third factor of the Campbell test (the amount and substantiality of the portion used) appears to lose much of its teeth when the court can deem a work “insubstantial in context.” If context can minimize the apparent substantiality of a full reproduction, then photographers and visual artists face a unique vulnerability. Unlike a musician whose song cannot easily be rendered “insubstantial” by surrounding commentary, or an author whose text dominates any surrounding analysis, a photograph can be visually subordinated by enough textual explanation or styling advice. 

  1. The Filters: The Warhol Majority Opinion, The Gorsuch Concurrence, Kagan’s Dissent, and The Picture That’s Still Developing 

The strange, shadowed lighting cast over SokolskyFilm’s analysis comes from Andy Warhol Foundation v. Goldsmith, 143 S.Ct. 1258 (2023). In that Supreme Court decision, the Court held that the Andy Warhol’s silkscreen prints, created from Lynn Goldsmith’s original photographs, were not fair use, despite the Warhol Foundation’s argument that the works were sufficiently transformative.  The Supreme Court in Warhol emphasized that purpose and market function matter. According to the Supreme Court majority opinion, Warhol had used Goldsmith’s photographs for the same commercial purpose as Goldsmith, which was to create high-end art for licensing and sale. Transformation in appearance or aesthetic quality was not enough; transformation must go to market function and purpose. Indeed, for the Warhol majority, “’ conveying[ing] a new meaning or message’ is not enough for the first factor to favor fair use.’” 143 S.Ct. at 1304 (Kagan, J, dissenting, and quoting majority at 1285-66). 

Now consider SokolskyFilm: Messiah selected another’s fashion photograph and used it in her own blog post offering styling advice. The photograph’s original purpose in Seeing Fashion was to showcase Sokolsky’s photographic artistry. Its new purpose was to illustrate fashion tips. These are different market functions. Messiah used the photograph functionally differently.  In other words, the use was not just aesthetically different, but for a different purpose.  On this reading, one might see SokolskyFilm as aligning itself with the Warhol majority: transformation of purpose and function matters.  And so it seems natural that SokolskyFilm cited Warhol on the first fair use factor (Purpose and Character of the Use). 

But SokolskyFilm also contradicts Warhol because it bases its fair use conclusion almost entirely on the difference, newness, and independence of the message, which we just saw the Warhol majority saying was not enough. 

What is strange is that SokolskyFilm, does not cite Warhol outside consideration of the first factor.  Yet, in a curious way, SokolskyFilm combines elements of Justice Gorsuch’s Warhol concurrence and Justice Kagan’s dissent, while seemingly not impressed enough with actual Warhol majority analysis to follow it even in consideration of the first factor.   

Justice Kagan’s dissent in Warhol argued for a broader conception of fair use, one that emphasized aesthetic transformation. Kagan argued that the majority’s focus on commercial purpose was too narrow. As she wrote, the majority’s approach threatened to “eliminate” fair use protection for works that are “aesthetically significant” transformations, even when they share a commercial function with the original. Kagan worried that this would constrain artistic freedom. She emphasized that changes in how a work is presented and perceived (its visual and aesthetic distinctiveness) should weigh heavily in the transformative use analysis, even without changes to the work’s commercial function or market purpose.  SokolskyFilm, in a curious way, embodies Kagan’s vision. By holding that surrounding context can transform a photograph, rendering it “insubstantial” despite its full reproduction, one could say that SokolskyFilm effectively adopted an approach closer to Kagan’s dissent: the perception and presentation of the work, altered by context, is transformation enough. 

Justice Gorsuch’s concurrence in Warhol offered yet another angle. Rather than focusing primarily on commercial purpose or aesthetic transformation, Gorsuch emphasized the nature of the challenged use itself. Gorsuch suggested that courts should examine whether the secondary use involves the same kind of creative act as the original.  In other words, whether the defendant is engaging in the same type of creative activity as the copyright holder. This inquiry looks less to the market function and more to the type of use: Are you making art? Are you engaged in commentary or criticism? Or are you simply reproducing for the same creative purpose? SokolskyFilm, arguably, also aligns closely with this Gorsuch framework because Messiah was engaging in a different type of creative use (styling advice, fashion commentary) than Sokolsky’s original use (art photography showcase), even though the photograph itself remained unchanged. 

This creates a fascinating tension: SokolskyFilm goes in a direction that the majority, in Warhol, seemed to have rejected, aligns with the deeper concerns of both Kagan’s dissent and Gorsuch’s concurrence, and then, ultimately, contradicts even those non-majority opinions. The Supreme Court majority said, in essence, look to purpose and market function.  Justice Kagan said look to aesthetic transformation. And Justice Gorsuch said,  look to the nature of the use. SokolskyFilm seems to have adopted elements of all three frameworks, but weighted them differently than the Supreme Court majority preferred, and even differently than Gorsuch and Kagan did.  

These are not harmonious principles and not really the same inquiry, or the same expected answers.  Though SokolskyFilm seems to champion the same protect-the-second-artist-to-promote-creativity sensibility as Justice Kagan’s dissent, Messiah’s blog in the end did not transform the work aesthetically, as the photo was unmodified in any way.  Likewise, SokolskyFilm seemed, like the Gorsuch concurrence, to understand the first factor inquiry to concern the “use” rather than the “work.”  But SokolskyFilm gives that use difference dispositive impact, while the Gorsuch concurrence noted that such “a comparative modest inquiry” concerning use is not determinative, as “no factor may ‘be treated in solution, one from another’” and the court was in this context neither deciding on infringement nor fully addressing all four fair use factors. Id. at 1290-91 (Gorsuch, J., concurring). 

SokolskyFilm thus creates an approach and result that, if upheld and followed, could change the fair use landscape significantly, as it goes past the points debated by the majority, concurring, and dissenting opinions in Warhol.  Doing so produces real differences in who wins and who loses these cases. 

  1. Coming Into Focus: Picturing The Winners and Losers 

As just noted, this decision will create winners and losers.  But they will be different set of winners and losers than Warhol created. 

  1. 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. 
  1. 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. 
  1. Will Accepting Contextual Transformation Fair Use Defenses Resurrect  Contextual Transformation Infringement Claims? 

SokolskyFilm found that Messiah’s use of the “unaltered Parker Train Photo” was “rendered insubstantial in context” because “the Parker Train Photo … is accompanied by a question-and-answer completely independent of the Photo.” Id. at 10.  Thus, for that court, we had fair use and no infringement.  But what of the converse, where the juxtaposition of the unaltered original work with the new work creates the new work’s message through context?  Is that an infringement even though the new work embodies and contains no portion of the original work? 

That is not idle pseudo-philosophical issue-spotting or heuristics.   

It is a real-world controversy, or at least was.  “When Kristen Visbel’s ‘Fearless Girl’ was installed at Bowling Green in Manhattan’s Financial District in March of 2017…in the path of Wall Street’s famous ‘Charging Bull,’… Arturo di Modica, sculptor of ‘Charging Bull,’ sa[id] that ‘Fearless Girl’ [] violated his trademark, copyright, and moral rights.” Price, Charging Bull and Fearless Girl: Conflict between Artists’ Rights and First Amendment Freedoms, Case Disclosed, Yale Law School (June 18, 2018).  According to di Modica: 

The statue of the young girl becomes the ‘Fearless Girl’ only because of the ‘Charging Bull’: the work is incomplete without Mr. Di Modica’s Charging Bull, and as such it constitutes a derivative work of the Charging Bull…   

Clearly, a deliberate choice was made to exploit and to appropriate the Charging Bull through the placement of the Fearless Girl. 

[Siegel et al., Letter To Mayor DeBlasio On Charging Bull vs. Fearless Girl, April 11, 2017] 

As one commentator noted, di Modica’s claim was that “the presence of Fearless Girl near Charging Bull recasts, transforms, or adapts his sculpture in two ways: by transforming the compositional environment in which the bull is displayed; or by recasting the symbolic importance of the sculpture.”  One has to notice that exactly what SokolskyFilm found to be the basis of the fair use defense (contextual transformation) was what di Modica claimed to be the basis of his copyright infringement claim.  Things can get really confusing here. 

  1. Shutter Speed: The Uncomfortable Truth 

Here’s what troubling about SokolskyFilm, and why it’s worth a closer read: the decision appears to allow copyright holders’ works to be reproduced in their entirety, without modification, and without permission, provided sufficient distinguishing context is added. This is a meaningful expansion of fair use doctrine, particularly for visual works. It privileges context and commentary over the copyright holder’s original right to control reproduction and distribution. 

Fair use exists precisely to balance the interests of copyright holders against the interests of the public in accessing and building upon creative works. Context, commentary, and new uses can generate value and promote the progress of science and the useful arts—the constitutional purpose of copyright. But SokolskyFilm tips the balance in a way that Warhol seemed to suggest the Supreme Court wanted to resist. 

  1. F-Stops: Lingering Questions Around The Size of The Aperture SokolskyFilm Creates In Our Fair Use Jurisprudence 

Several questions remain unanswered, and they will likely define how SokolskyFilm is applied and distinguished in future cases: 

First, how much surrounding context is “enough” context? The SokolskyFilm court found that a question-and-answer format and styling tips sufficed. But what if Messiah had simply posted the photograph with a one-sentence caption? Would that be transformation? At what point does context become substantial enough to overcome the third factor? 

Second, does the rule apply differently to different media? For photographs, context seems to matter more than for text or music. A 300-page novel cannot be rendered “insubstantial” by surrounding commentary in the same way a photograph can. Does this create a two-tiered fair use regime? 

Third, what if the original photographer intended for the work to be recontextualized? Sokolsky’s work appeared in a book called Seeing Fashion, which was meant to showcase his photography. If the photographer or copyright holder had anticipated and approved of subsequent uses with new commentary, does that inform the fair use analysis? 

Finally, does SokolskyFilm survive appellate scrutiny? The decision is a district court decision that has been appealed to the Ninth Circuit, with opening briefing due in October 2026.   How will the Ninth Circuit, or maybe later the Supreme Court, treat the application of the third factor? Or has SokolskyFilm shifted the baseline for how courts analyze fair use in visual-media cases? 

  1. Smile For The Camera, But Not So Much For The Photographer: What’s Next For Fair Use? 

As Paul Simon sang in KodaChrome, “I can read the writing on the wall.”  

The risk of SokolskyFilm, it seems, is that courts may take liberties with photographers’ intentions for their own work, and photographers may see challenges to their desire to control how their art used, and by whom, and in what context.  The decision does not explicitly overrule or reject Campbell or Warhol, nor could it as District Courts don’t generally do that to the Supreme Court.   

But SokolskyFilm would, if followed, shift the focus of  how the third factor operates in photograph cases. SokolskyFilm says, in effect: “A photograph can be reproduced in its entirety, without modification, and used for a different purpose, and still be fair use, provided the surrounding context is sufficiently transformative.” For photographers (and for artists generally), that is a significant loss. For digital media platforms, content creators, and those who build on existing imagery, it is a significant gain. 

Is that balance correct? Is it wise policy? Those are not questions this blog post can answer. But they are questions courts, and perhaps eventually the Supreme Court, will need to confront if SokolskyFilm reverberates through the fair use landscape.  In the meantime, if you are a photographer whose work appears in a copyrighted compilation like Seeing Fashion, pay close attention to what gets republished, where it appears, and what context surrounds it. Under SokolskyFilm, context is everything.  

And everything can be transformed by it.