On February 6, 2024, in Philpot v. Independent Journal Review, the U.S. Court of Appeals for the Fourth Circuit issued a copyright fair use decision in a photograph infringement case that is noteworthy for a number of reasons. Those who plan to use photos based on a fair use defense should take heed of this decision.
In this case, photographer Larry Philpot sued news website Independent Journal Review for using Philpot’s photo of singer Ted Nugent in an online article. One of the more interesting facts here was that Philpot uploaded his photo to Wikimedia Commons, which is governed by a Creative Commons license requiring attribution. In other words, he simply required that users of his photo give him attribution, not pay him. Users could use Philpot’s photo free of charge, provided they included the following attribution: “Photo Credit: Larry Philpot of www.soundstagephotography.com.” Instead, Independent Journal Review hyperlinked to Mr. Nugent’s Wikipedia page, where the photo was featured.
Yet another noteworthy fact is that the photo apparently generated only approximately $2 or $3 in revenue for the Independent Journal Review.