PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-2021

LARRY G. PHILPOT,

Plaintiff – Appellant,

v.

INDEPENDENT JOURNAL REVIEW,

Defendant – Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Anthony John Trenga, Senior District Judge. (1:20-cv-00590-AJT-TCB)

Argued: October 24, 2023 Decided: February 6, 2024

Before KING, WYNN, and RUSHING, Circuit Judges.

Reversed and remanded by published opinion. Judge Wynn wrote the opinion, in which Judge King and Judge Rushing joined.

ARGUED: Stacy Ann Cole, KEATING, MEUTHING & KLEKAMP, PLL, Cincinnati, Ohio, for Appellant. Manuel Antonio Cordovez, CREATIVITY IP PLLC, Alexandria, Virginia, for Appellee. ON BRIEF: Kristine M. Maher, BRICKER GRAYDON LLP, Cincinnati, Ohio, for Appellant. USCA4 Appeal: 21-2021 Doc: 74 Filed: 02/06/2024 Pg: 2 of 23

WYNN, Circuit Judge:

Photographer Larry Philpot brought a copyright-infringement claim against news

website Independent Journal Review (“IJR”) after IJR used his photograph of musician

Ted Nugent in an online article. IJR moved for summary judgment, raising the affirmative

defense that, pursuant to 17 U.S.C. § 107, its use of the photo constituted “fair use” under

the Copyright Act. It alternatively argued that Philpot’s copyright registration was invalid.

Philpot cross-moved for summary judgment, contending in relevant part that his

registration was valid and that IJR’s use was not fair use. Although the district court found

a dispute of material fact as to whether the copyright registration was valid, it granted

summary judgment to IJR on “fair use” grounds. Philpot appeals the denial of summary

judgment to him as to the copyright registration and the grant of summary judgment to IJR

as to “fair use.”

We conclude that IJR’s use of the photo was not “fair use.” And we conclude that

Philpot is entitled to summary judgment on the validity of the copyright registration.

Therefore, we reverse and remand for further proceedings consistent with this opinion.

I.

The facts, which are undisputed except as noted, are as follows. Philpot is a

professional concert photographer who took a photograph of Nugent performing in July

2013 (the “Photo”). On August 15, 2013, pursuant to the copyright-registration procedure

outlined in 17 U.S.C. § 408, Philpot submitted the Photo for registration with the United

States Copyright Office as part of a collection of unpublished works. The Copyright Office

issued Philpot a registration certificate on August 21, 2013. The next month, Philpot also

2 USCA4 Appeal: 21-2021 Doc: 74 Filed: 02/06/2024 Pg: 3 of 23

published the Photo on Wikimedia Commons 1 under a Creative Commons license. 2 The

license specified that anyone could use the Photo for free so long as they provided the

following attribution: “Photo Credit: Larry Philpot of www.soundstagephotography.com.”

J.A. 30–31. 3

Additionally, on August 8, 2013, Philpot entered into a photograph licensing

agreement with nonparty AXS TV (“the Agreement”), under which Philpot granted AXS

TV a two-year license to inspect at least 1,000 of Philpot’s photos in order to select twelve

to curate for licensing. The Agreement provided that AXS TV’s license to the 1,000

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