Sorry For Partying

Last week was a bit of a let down, wasn’t it?  Here’s all of these interesting facts, and then thbbt! No resolution.  This week is better.  This one also involves the manipulation of a photograph but with a lot more humor.

This time, Sconnie Nation, a t-shirt company, used a photo taken by Michael Kienitz of Paul Soglin, the mayor of Madison, Wisconsin.

While a student at the University of Wisconsin in the 1960’s, Paul Soglin wasn’t into “the establishment.”  He even attended the first Mifflin Street Block Party, whose theme (according to Soglin) was “taking a sharp stick and poking it in the eye of authority.”  However, over the years, his views have changed, especially on the Mifflin Street Block Party. He wants to shut down the annual event. For the 2012 Block Party, Sconnie Nation made some t-shirts and tank tops displaying an image of Soglin’s face that was based on Kienetz’ photo and the phrase “Sorry for Partying.” Sconnie Nation made a whopping 54 sales of those shirts.  Kienitz sued claiming Sconnie Nation infringed his copyright by using his photograph without his permission.

When reviewing if Sconnie Nation did infringe, the court looked at the factors to determine if a  work in any particular case is a fair use.  While it could have argued about the “transformative” nature as we saw in the Fairey case, the court decided it didn’t need to do so.  It stuck to the tried and true statutory factors.

It noted that “A t-shirt or tank top is no substitute for the original photograph. Nor does Kienitz say that defendants disrupted a plan to license this work for apparel. Kienitz does not argue that defendants’ products have reduced the demand for the original work or any use of it that he is contemplating.”

Judge Easterbrook, who has a penchant for writing interesting opinions, went on to say:

Defendants removed so much of the original that, as with the Cheshire Cat, only the smile remains. Defendants started with a low-resolution version posted on the City’s website, so much of the original’s detail never had a chance to reach the copy; the original’s background is gone; its colors and shading are gone; the expression in Soglin’s eyes can no longer be read; after the posterization (and reproduction by silk-screening), the effect of the lighting in the original is almost extinguished. What is left, besides a hint of Soglin’s smile, is the outline of his face, which can’t be copyrighted. Defendants could have achieved the same effect by starting with a snapshot taken on the street.

In Kienitz’ favor, the court pointed out that Sconnie Nation didn’t need to use the copyrighted work. They wanted to mock the Mayor, not to comment on Kienitz’s skills. “There’s no good reason why defendants should be allowed to appropriate someone else’s copyrighted efforts as the starting point in their lampoon, when so many non-copyrighted alternatives (including snapshots they could have taken themselves) were available.” Also, this use may injure Kienitz’s long-range commercial opportunities, even though it does not reduce the value he derives from this particular picture.

The fair-use privilege under § 107 is not designed to protect appropriators who take the easiest option for their starting point. Rather, its goal instead “is to facilitate a class of uses that would not be possible if users always had to negotiate with copyright proprietors. (Many copyright owners would block all parodies, for example, and the administrative costs of finding and obtaining consent from copyright holders would frustrate many academic uses.)”  However, that doesn’t truly apply here as a Sconnie Nation and Mayor Soglin are both from the same, relatively small city, and Mayor Soglin is no hermit.

But, alas, given that “almost none of the copyrighted work remained,” the court found Sconnie Nation did not infringe.  And the Mifflin Street Block party continues as well.

So the take away for you is that the safest bet is to be the originator of all of your media or get permission from the owner.  As these two cases show, a lot of modification may or may not get you a “win” in litigation, but it will get you litigation. Fair use is a defense that isn’t a “gimme.”   Therefore, to avoid litigation, consider avoiding the use of other people’s stuff without their OK.

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