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.

I’ll be having morning coffee with other lawyers in Kansas City, Missouri, where I’ve practiced law since 1985, at both large and small firms.  I’m a 63 year-old White guy, straight, cis, and reasonably abled.  The lawyers with whom I’ll be chatting over coffee are different than me, in one or more of these ways. 

If I’ll be asking other lawyers about their experiences with Belonging in their law firms, I’d best start with a definition of Belonging.  My predicament is that, as already mentioned, I’ve never had to closely examine what Belonging actually means in a professional setting.

My conundrum reminds me of how David Foster Wallace began his Kenyon College commencement address, This is Water:

There are these two young fish swimming along and they happen to meet an older fish swimming the other way, who nods at them and says “Morning, boys. How’s the water?” And the two young fish swim on for a bit, and then eventually one of them looks over at the other and goes “What the hell is water?

So, what the hell is Belonging?  I do know a few things:

Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partners Jennifer Riley and Alex Karasik and associate Emilee Crowther with their discussion of 2023 developments and trends in data breach action litigation as detailed in the recently published Duane Morris Data Breach Class Action Review – 2024.