IP Law Daily, COPYRIGHT NEWS—Photographer petitions High Court over Ninth Circuit’s refusal to protect self-portraits allegedly copied by Lil Nas X, (Jan 5, 2026)

By Ravindra Kumar Singh, B.L.

The Ninth Circuit misapplied copyright law and created a circuit split by denying protection to original photographic elements, the petition alleges.

Rodney Woodland, an independent visual artist and figure model, has petitioned the U.S. Supreme Court for certiorari after the Ninth Circuit and a California district court dismissed his copyright suit against Montero Lamar Hill (Lil Nas X). Woodland alleges that Hill copied original elements of his registered self-photographs in social media posts and merchandise. The lower courts found that components such as pose, lighting, and costume were not protectable, and that access was not plausibly alleged. Woodland urges the Court to resolve a circuit split on whether copyrightability is a legal, factual, or mixed question and to reject the Ninth Circuit’s restrictive approach to photographic works (Woodland v. Hill, Dkt. No. 25-754 (U.S. filed Dec. 22, 2025)).

Rodney Woodland is a California-based artist whose work focuses on stylized, semi-nude self-portraits featuring curated poses, elaborate costumes, controlled lighting, and post-production editing. Montero Lamar Hill, known worldwide as Lil Nas X, is a multi-platinum recording artist with a significant social media presence. In 2021, Hill posted several stylized semi-nude photographs that Woodland alleges copied expressive components from his copyrighted images. The disputed images concern twelve photographs authored by Woodland.

District court and appellate decisions. The Central District of California dismissed the complaint in April 2023. It held that Woodland had not adequately pleaded that Hill had access to his works, noting Woodland’s low follower count and limited engagement. The court also applied Rentmeester v. Nike, Inc., 883 F.3d 1111, 1117 (9th Cir. 2018) to find that only the “selection and arrangement” of unprotected elements may be eligible for copyright, and that the accused images were not substantially similar to that arrangement.

The Ninth Circuit affirmed in May 2025, emphasizing that individual elements—even “highly original” ones such as pose, lighting, and makeup—are unprotected when viewed in isolation. The panel held that Woodland failed to show either access or unlawful appropriation under the extrinsic test for substantial similarity. The court also rejected Woodland’s attempt to infer access through Instagram’s recommendation algorithm, holding that generalized overlap in content genre does not satisfy the “reasonable possibility” standard.

Originality. Woodland argues that the Ninth Circuit’s treatment of originality as a pure question of law contradicts the Supreme Court’s reasoning in Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991), and Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884). He emphasizes that both decisions relied on factual findings about the creative process behind a work, including staging, lighting, and authorial intention.

In Feist, the Court considered how a phone book’s entries were selected and arranged, holding that factual inquiry into the author’s decisions determined originality. Likewise, in Burrow-Giles, the Court upheld protection for a posed photograph of Oscar Wilde based on findings that the photographer arranged costume, lighting, and expression—elements also present in Woodland’s works.

Other circuits, including the First (CMM Cable Rep., Inc. v. Ocean Coast Props., Inc., 97 F.3d 1504 (1st Cir. 1996)) and Tenth (Zahourek Sys. v. Balanced Body Univ., LLC, 965 F.3d 1141 (10th Cir. 2020)), recognize copyrightability as a mixed question of law and fact. The Fourth Circuit treats originality as a factual determination reviewed for clear error. In contrast, the Ninth Circuit treats the issue as purely legal, allowing early dismissal and barring discovery into the work’s creation.

Woodland warns that this approach invites premature resolution of fact-bound issues and conflicts with longstanding doctrine respecting the jury’s factfinding role.

Infringement test. Woodland further contends that Rentmeester and its progeny create a sui generis test for photography by denying protection to any individual visual element unless arranged in a protectable sequence. He asserts that such a rule contradicts Harney v. Sony Pictures TV, Inc., 704 F.3d 173 (1st Cir. 2013), where the First Circuit recognized protection for specific photographic choices—including posing and lighting—when those decisions reflect the author’s original expression.

In Mannion v. Coors Brewing Co., 377 F. Supp. 2d 444 (S.D.N.Y. 2005), the court emphasized that originality may reside in a photograph’s conception, execution, and aesthetic decisions, whether or not a unique selection-and-arrangement is evident. Woodland argues that the Ninth Circuit’s refusal to recognize such protectable expression creates a conflict in photographic copyright standards across jurisdictions.

Jury’s role in similarity determination. The petition also criticizes the Ninth Circuit’s trend of resolving “substantial similarity” at the pleading stage, without giving plaintiffs access to the intrinsic test traditionally reserved for juries. Citing Williams v. Gaye, 895 F.3d 1106 (9th Cir. 2018), Woodland argues that the role of the reasonable observer—and not judicial aesthetic appraisal—must control similarity assessments. He contends that courts should not decide infringement solely on a visual comparison, without contextual facts or a jury’s input.

Algorithmic access. On the access issue, Woodland faults the lower courts for failing to account for the realities of modern content-sharing platforms. He argues that Instagram’s recommendation systems frequently present users with similar genre content, especially in niche communities such as artistic semi-nude modeling. Although Woodland’s images received modest engagement, he contends that Hill likely encountered his work via algorithmic surfacing and mutual content overlaps.

However, both the district court and the Ninth Circuit held that Woodland’s allegations were speculative and lacked a sufficient “chain of events” or proof of dissemination. Citing Art Attacks Ink, LLC v. MGA Ent. Inc., 581 F.3d 1138 (9th Cir. 2009), the appellate court reaffirmed that content availability alone does not prove access.

Relief sought. The petition requests that the Supreme Court resolve a growing circuit split over the proper characterization of copyrightability—specifically, whether it is a question of law, a question of fact, or a mixed question requiring factual inquiry. Woodland urges the Court to clarify that individual creative elements within photographs—such as pose, lighting, costume, and composition—can be protectable expressions when they reflect the author’s original intellectual conception. He further seeks reaffirmation of the jury’s constitutional role in evaluating substantial similarity between works, cautioning against premature judicial determinations that preclude factual development. Additionally, the petition calls on the Court to acknowledge that algorithmic content dissemination on social media platforms like Instagram may give rise to a plausible inference of access, even absent traditional evidence of wide dissemination. Ultimately, Woodland asks the Court to reverse the Ninth Circuit's judgment and remand the case for adjudication on the merits.

The questions presented by Woodland’s petition are: (1) Whether, on an acknowledged Circuit split, copyrightability is a pure question of law, as the Ninth Circuit held below, or includes considerations of background facts, either as a pure question of fact or as a mixed question of law and fact, as heavily implied by this Court’s decision in Feist and expressly adopted by other Circuits citing Feist; and (2) Whether copyright protection for photography is only selection and arrangement as the Ninth Circuit held in Rentmeester and extended below, or whether copyright protection for photography is assessed just as for all other works of the visual arts that Congress placed on an equal footing in 17 U.S.C. § 101 and in accordance with this Court’s seminal decision in Burrow-Giles.

The Case is Dkt. No. 25-754.

Attorneys: Andrew Benedict Grimm (Digital Justice Foundation, Inc.) for Rodney Woodland.

News: Copyright AlaskaNews ArizonaNews CaliforniaNews HawaiiNews IdahoNews MontanaNews NevadaNews OregonNews WashingtonNews