Intellectual property laws sometimes pit different camps of creators against each other. On the one hand, makers want the freedom to pull inspiration from works that have already been made. On the other, they want to be paid for their own work. Last week, the Seventh U.S. Circuit Court of Appeals decided a case in Madison, Wisconsin that pitted a photographer against a t-shirt designer, with dashes of parody, political speech and perceived defamation thrown in.
In 2012, the mayor of Madison, Paul Soglin, tried to stop the annual Mifflin Street Block Party. The event, held on the first Saturday each May, was founded in 1969 as a protest of the Vietnam War. After the war ended, it evolved into a bacchanalia for University of Wisconsin students and their road-tripping friends. By 2011, the event was out of control, with allegations of fights, sexual assaults and stabbings.
Despite the problems, the students loved the Mifflin Street festivities, and they were not happy about the mayor’s threats. Before the 2012 party, the staff at Sconnie Nation, a local t-shirt store (WiSCONsin, get it?), pulled a photo of the mayor off of the city’s website, adapted it for a silk screen and produced t-shirts that said “Sorry for Partying” — in part, a reference to the fact that Soglin himself took part in the very first Mifflin Street Block Party. They sold a total of 54 shirts, making a small profit.
Michael Kienitz, the photographer who took the picture of Soglin, cried foul. He may have filed suit at the instigation of Mayor Soglin, although that’s neither here nor there from a legal perspective. Kienitz said the photo was copyrighted and that the city had a license to use it for non-commercial purposes only. Therefore, Sconnie Nation had appropriated his image, and Kienitz wanted compensation.
The federal court for the Western District of Wisconsin ruled for the defendants, saying that Sconnie Nation’s design was a transformative use of the photo. It cited a decision by the Second District Court of Appeals, Cariou v. Prince, about the right to create artwork based on copyrighted photographs. In that case, the court ruled that Prince’s artwork transformed the works enough to be considered fair use.
Kienitz appealed, and the case went to the Seventh Circuit. The appeals court not only upheld the decision, but it also criticized the Cariou v. Prince rationale. They said that it is difficult to determine whether something is transformative, and that a better test is Section 107 of the U.S. Copyright Act, which lists four factors that can be used to determine if use is fair:
- The purpose and character of the use, including whether it is commercial in nature
- The nature of the copyrighted work
- The amount of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for, or value of, the copyrighted work
Using these factors, the court noted Sconnie Nation’s use was commercial and that the photograph was copyrighted properly. However, the design and silk-screening process reduced the photo (see left) to the outlines of Soglin’s face, a small part of the original. Furthermore, the t-shirts didn’t affect the market for Kienitz’s original photo.
Legal scholars have been abuzz about this case because it criticized another court’s decision. It also upheld the use of the four factors in copyright law, giving makers good guidance on what to do when faced with similar situations.
In short, blur the heck out of the image so that the original work is not easily recognizable by an aggrieved subject. If your case is heard by the second circuit or the seventh, you’ll be safe.