An Illinois Photographer Fails To Beat The Fair Use Defense
November 11, 2015
by Jerry Glover
Jacob Meister was a supporter of politician Sam Yingling, a Democratic member of the Illinois House of Representatives, who was running for election. A photographer took a picture of Meister driving a convertible in a political parade with a poster on the side of the car advertising Yingling. Yingling obtained permission from the photographer and place the photograph on his campaign website.
The defendants, all Republican organizations and their supporters, took that photograph and altered it so that it looked like Meister was driving away from the State Capitol building with stolen money in the backseat and hundred dollar bills flying out of the open convertible. The defendants thought that Meister was Yingling. They took the altered photo, made two versions of it and incorporated them into a flyer supporting Yingling’s opponent. The flyer included a headline beside one of the photos which stated “Mr. Yingling Went to Springfield … And Fiscal Responsibility Went Out the Window.” Next to the second photo the headline read “Career Politician Sam Yingling in the Driver’s Seat as Illinois Speeds Towards Higher Taxes, More Wasteful Spending, and More Jobs Lost. The flyer was mailed to several thousand people.
The photographer sued the defendants in the federal district court in the Northern District of Illinois for copyright infringement. The defendants moved to dismiss the plaintiff’s complaint. Galvin v. Illinois Republican Party, 2015 WL 5304625 (N.D. Ill. September 9, 2015).
Although the U.S. Copyright Act grants a copyright owner several exclusive rights in the material they create including the right to control whether others may use the material, the Act also provides that those rights do not extend to an authorized “fair use” of those materials. The preamble to the fair use provisions (17 UJ.S.C. Sec. 107) notes that criticism, comments and news reporting are some examples of the ways in which copyrighted material (or at least a portion of that material) may be used without the owner’s permission. And that’s what these defendants argued: their use of the photograph was for the purpose of criticism and commentary.
The Copyright Act does not define fair use but it does list four factors courts must use to determine whether unauthorized use of material is fair:
1) The purpose and character of the use including whether such use is of a commercial nature or is for no-profit educational purposes.
This factor is used to determine whether the unauthorized use takes the place of the original material or whether it adds something new with a different purpose of character thereby altering the original with new meaning. The courts have often shortened this determine to one question: has the defendant transformed the original work? Here the original photograph was meant to document a part of Yingling’s campaign while the defendants’ use was meant to criticize his politics. The court agreed with the defendants but that did not lead to an automatic determination that it was a fair use because no category of speech—here, political criticism—is more favored than others. Although the defendants may have a right to criticize Yingling, they do not necessarily have the unfettered right to use someone else’s copyrighted material to engage in that criticism especially when other non-copyrighted material might have been used to do the same thing.
But what about the “commercial v. non-profit educational” prong of this factor? Here the court noted that defendants did not stand to profit financially from the use of the copyrighted photograph especially since the flyers were distributed without charge.
Although the defendant’s use of the photograph was meant to criticize a politician, a permitted use, the court noted defendant could have used other material for the same purpose. So this factor favored neither the plaintiff nor the defendant. Perhaps if the person in the photograph had actually been Yingling, the court would have reached a different conclusion regarding this fair use factor.
2) The nature of the copyrighted work
This factor looks at the copyrighted material to determine whether it is more creative or factual in nature. Creative works deserve stronger copyright protection than factual works. Since the photograph in this case was used to document a political event, the court ultimately determined that the photograph was more factual than creative in nature. It was taken during a live event and was not staged by the photographer—a factor that buttressed the court’s determination that the photograph was more factual than creative despite whatever artistry the photographer may have used to determine the angle of the show or other compositional elements. This factor favored defendants.
3) The amount and substantiality of the portion used
The plaintiff’s entire photograph was used, even though altered. How can the use of an entire photograph be considered fair? The court noted there was no rule against find fair use even if an entire copyrighted work is used. The court noted that a parody, which criticizes an underlying work, may use a significant portion of, or even the entire work because parody needs to mimic the original to achieve its purpose. The defendants argued that the headlines used in the flyer noting that Yingling was “in the driver’s seat” and that “fiscal responsibility went out the window” required that they use the plaintiff’s photograph. As noted above, the court again stated that the defendants did not have to use that particular photo to achieve the same result. So this factor did not favor defendants.
4) Effect upon the potential market or value of the copyrighted work
This factor determines whether defendants’ use of the photograph destroyed the potential market for the work. The court noted this is often considered the most important fair use factor. Did defendants’ use of the photograph destroy the plaintiff’s ability to license the photograph to others? The court noted that it was unlikely the photograph would have licensed the photograph to others so that they could use it to criticize someone. The original photograph and the use defendants made of it served two different markets.
The court noted that the only way the altered photograph could have impaired the market for the original was as a “negative complement.” The court explained that a parody or a non-complimentary book review could weaken the market for the original works the review or parody criticizes. This “negative complement” can impair the copyright owner’s long-range commercial opportunities but criticism is a legitimate use of copyrighted works. Here the photographer did not argue that fewer people will hire or cooperate with him because of the defendants’ use of his photograph. He only argued that the defendants’ criticism harmed the reputations of his subject and thus the value of the photograph. The court concluded this was not a purpose of copyright law; fair use does not take into account the lessening of commercial value solely due to critical commentary of the copyrighted material. So this factor weighed in defendant’s favor.
The court concluded that two of the four factors including the most important one—effect upon the potential market—favored defendants, the court found their use of the photograph was a fair use.
NOTE: We recently discussed another Illinois case involving the use of a politician’s photograph. See here.