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Fourth Circuit Weighs In on Fair Use and Copyright Registration Validity
In Philpot v. Independent Journal Review, 92 F.4th 252 (4th Cir. 2024), the U.S. Court of Appeals for the Fourth Circuit reversed the district court's findings regarding fair use and copyright registration validity.
Facts
In July 2013, Larry Philpot, a professional concert photographer, took a photograph of "Motor City Madman" Ted Nugent performing. On Aug. 21, 2013, Philpot applied to register the Nugent photo with the U.S. Copyright Office as part of a collection of unpublished works, and the Office issued Philpot a registration certificate effective Aug. 21, 2013. The next month, Philpot published the Nugent photo on Wikimedia Commons under a Creative Commons license. The license specified that anyone could use the Nugent photo for free so long as they provided attribution to Philpot.
On Aug. 8, 2013, Philpot entered into a licensing agreement with nonparty AXS TV under which Philpot granted AXS TV a two-year license to inspect 1,000 of Philpot's photos in order to select 12 to "curate for licensing." The AXS agreement provided that AXS TV's license for the photos would become effective upon Philpot's email delivery of the photos to AXS TV. On Sept. 10, 2023, Philpot emailed AXS TV a batch of photos that included the Nugent photo.
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