Judge Rules 'Fair Use' Against Photographer Whose Image of Democrat was Used in Slanderous Republican Campaign

Judge Rules 'Fair Use' Against Photographer Whose Image of Democrat was Used in Slanderous Republican Campaign

A photographer who discovered the Republican National Committee (RNC) used her image of a Democratic candidate without permission in a political mailer has had her case rejected. Despite the RNC using the image slander the subject’s campaign, a court has ruled it as fair use due to the “transformation” applied to the work.

It was in May 2017 that photographer Erika Peterman filed a copyright infringement lawsuit after discovering the image had been used without her permission. The photo in question was of Rob Quist, a Democratic congressional candidate who ran against GOP candidate Greg Gianforte in Montana, and was lifted from Quist’s official Facebook page.

The image was licensed to the Quist campaign. But despite using it to mock Quist, the RNC claim fair usage on the photo – and have been supported by the courts.

As per the statement:

The mailer uses Quist's musicianship to criticize his candidacy, subverting the purpose and function of the Work. With the addition of the treble clefs and text throughout, the mailer attempts to create an association between Quist's musical background and liberal political views… In this context, the image takes on a new meaning.

Because of the changes made to the image — those being "moderately transformative and wholly noncommercial [sic]" — RNC were deemed to be acting within their right. What’s more, the court also claimed that the RNC's use hadn't directly prevented Peterman from profiting from the image. As she had also posted it on social media, the court added that "it must be assumed that the MDP, Quist Campaign, and Peterman herself would have welcomed reposts etc by other pro-Quist social media users."

Speaking to DPReview following the ruling, photographer Peterman said:

I think equating political criticism to transformative use is pretty far-reaching. This decision gives any political party (or PAC) the freedom to use artistic or creative photos of political candidates for political criticism under the auspices of fair use. This impacts me greatly because I do a lot of political photography and work hard to create compelling, creative photos for the candidates I work with.

Lead image: rawpixel.com from Pexels.

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21 Comments

Leigh Miller's picture

And there we are..... so we have to strike a balance between displaying work and protecting their value

michaeljin's picture

Garbage ruling.

Rob Davis's picture

This needs to be appealed. Set up a legal fund. I’ll donate.

"it must be assumed that the MDP, Quist Campaign, and Peterman herself would have welcomed reposts etc by other pro-Quist social media users."

Um, no. Reposts are not the same as derivative works. Nor is adding clip art and text “transformative.”

If Ford uses an image to say Chevy sucks, that’s commentary and commercial use at the same time. They’re not mutually exclusive and copyright still should apply.

This is a huge IP rights grab!

Except that there is no commercial use in a political ad photo; to the contrary, it's all commentary and 1st amendment speech. The opposing campaign that uses the image as part of their campaign doesn't profit commercially, though they're certainly hoping to do better at the polls.

I see photos being 're-purposed' all the time in political ads, particularly still images being used in the other campaign's video ads. It happens so much I don't see it as anything unusual.

I see how the court got there, and I can't argue much with them.

Rob Davis's picture

Violating copyright isn’t conditional on making a profit. You can’t legally screen a film publicly without permission. You can’t use copyrighted music in a home video and post it to Facebook. This case can and should be challenged. The judge made the argument that allowing reposts on social media effectively nullifies copyright for non-commercial use. It does not.

Ms. Petersen: "This decision gives any political party (or PAC) the freedom to use artistic or creative photos of political candidates for political criticism under the auspices of fair use."

Yes, that is entirely correct and just what the court said, and it's hard to argue. Especially if they 'transform' the image, and with this case there wasn't much of that, the opposition is home free. This has been going on for quite a while and isn't unusual in the least. The opposition will frequently use an image that comes from a campaign for use against that campaign. It's a brave court that will rule against that given the 1st amendment implications and political speech.

Get used to it. Happens a lot.

Geoff Miller's picture

The most common example of this is that campaigns routinely use video or screen shots of news stories in their political ads to hammer their opponents. The selected news outlets can object until they are blue in the face, but Supreme Court precedence holds that ads by political candidates are protected by the First Amendment as "political speech" and therefore they have a wider latitude to use the work of others to make a point to voters.

Marcus Joyce's picture

If only America had an article 13 equivalent...

William Howell's picture

When Shepard Fairy made his “Hope” poster for President Obama, he used an AP photograph. Fairy was going to win his case against AP, as it is the same as this issue, in this article. But he was caught red handed lying about where he got the Obama photograph. Thus he settled with AP.
This is the same. When it comes to political speech, there is very wide latitude as to what is fair use.
Jill Greenberg almost ruined her career because of some sneaky shenanigans she pulled against John McCain. But she was within her rights to use the image the way she did.

Geoff Miller's picture

It is not the same. Fairey created the poster as a work of art, independent from the Obama campaign. It was only after it was released that Obama's campaign embraced the work. The work at the center of this story was produced by a candidate directly. Legally, that's a horse of a different color.

William Howell's picture

How is this different? Candidate or supporter, both have the freedom of speech, particularly political speech, right? No this is fair use, in my opinion.

Geoff Miller's picture

How is it different? Because our courts have pretty consistently said so. Courts are loath to be seen as the arbiters of candidate-centered political speech, particularly when the message is directed at their opponent. As such, they take a "hands off" stance.

You may not like it or see it that way, but that's what case history shows. See my example posted above about the common cases of politicians using screen shots or clips from copyrighted news stories, both print and video, in ads without (and sometimes explicitly against) the permission of the content creators in their own ads. Usually, as is with the case of the photo at the center of this lawsuit, the lifted content is used to directly criticize a political opponent's fitness for election.

Going back to your Fairey example, if the McCain campaign had created an ad that spoofed the work of art and simply changed the "H" to a "D", as a commentary about McCain's opponent's character, the ruling likely would have been the same. The use would have been "transformative" as it would have been first and foremost a satirical lampooning of the political opposition, instead of a mere work of art.

William Howell's picture

I think me and you agree, somewhat, but, in the President Obama “Joker” poster, that artist used a Time Magazine cover photo, and they didn’t even file a suit. Because they knew it was fair use.

Due you even know the meaning of slanderous? It's not a synonym for political or negative or mocking.

Daniel Medley's picture

Horrible ruling? Yes.

Slanderous? Uh, not so much.

Motti Bembaron's picture

I wonder, what would have been the ruling if it was the other way around :-)

Daniel Medley's picture

Since the judge is an Obama appointee, probably the same.

If I were to guess.

Motti Bembaron's picture

Good point. I guess some elected officials are objective. Bad judgment nonetheless, in my opinion.

Spy Black's picture

Corporate Imperialism at it's best. Expect this to be the norm from now on boys and girls...

The law is whatever the judge says it is. What's unusual about this? If the photographer doesn't like the ruling she can always appeal.

Drew Pluta's picture

"subverting the purpose and function of the Work" I'm pretty sure that's not a thing. You don't get to steal the property and then say "well I did something different with it" That is just not the way it works or ever has worked. There would literally never be any point to copyright if this were the case. Pretty much every possible infringement could be justified as a "different use." I mean, by definition it's always a different use. IP infringement doesn't hinge upon intent, if you don't own the work You don't get to use it.

And they aren't claiming "parody" of "collage" which are the only real angles to get to "fair use."

When the Beastie Boys LOST their sampling case and had to pay for using the Led Zeppelin sample, They could have easily claimed that they used it in a different way, they actually did! Every sampling case in music history would have been won with this defense.

Or maybe its a right wing judge...