The U.S. Court of Appeals for the Fourth Circuit has ruled that a copyright infringement claim against a news site for using a photo of musician Ted Nugent without credit could proceed, one of the first federal appellate decisions interpreting the U.S. Supreme Court’s new “fair use” test.

Court-watchers said the Feb. 6 opinion in an appeal brought by photographer Larry Philpot might signal that lower courts will, in general, take an increasingly tough stance against using unlicensed photos in publications following the justices’ May decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. There, the high court held the Andy Warhol Foundation infringed on photographer Lynn Goldsmith’s copyright by creating silk-screens based on her picture of the singer Prince, partly because the work wasn’t transformative enough.