Another court rules in favor of parody as fair use!
A bit of history: In 2012, Sconnie Nation printed a number of t-shirts emblazoned with a caricature of Madison’s Mayor, Soglin’s photograph. The underlying photo was one Mayor Soglin has used to present himself to the public, posting it on his public web page. University of Wisconsin students had found this particular photo, posterized it, had it printed on a t-shirt and sold several dozen t-shirts at an annual block party. The original image and the posterized version are shown below:
The photographer, Kienitz, recognizing the underlying original images as his copyrighted IP, sued for copyright infringement. In August 2013, the US District Court ruled Sconnie Nations use fell under the “fair use” clause of the US copyright act, and so was not infringing. Not satisfied, Kienitz appealed, now the 7th circuit has ruled “fair use” for the image.
Given the number of parody images posted at copyright-trolls, I think it’s worth considering the argument for fair use in the Sconnie Nation case and compare it to — for example– the Linda Ellis example here
In Kienitz V Sconnie Nation, the court first lists the four factors used in the test for fair use
In determining whether the use made of a work in any particular
case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educa-tional purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Easterbrook writing for the 7th circuit engages factor (3) as follows,
Defendants re-moved 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.
A somewhat similar argument could be made vis-a-vis the Linda Ellis as Troll Caricature. While posterization is not as extreme, the parodist began with a low resolution image, modified colors and shading of the face such that the effect of lighting on the subjects skin is entirely eliminated. The expression of the eyes and face is transformed from open and friendly to fiendish. The parodyist could have achieved a similar effect with a snapshot taken on the street — that is: close to none of the creative content in the original is used in the parody image.
Turning to the the 4th element of fair use: Easterbrooke writing for the 7th circuit doesn’t say much about that issue because even the plaintiff made no claims about loss of revenue. Kienitz did not intend to market the photo. Discussion of the 4th element is limited to:
We think it best to stick with the statutory list, of which the most important usually is the fourth (market effect). We have asked whether the contested use is a complement to the protected work (allowed) rather than a substitute for it (prohibited). See Ty, Inc. v. Publications International Ltd., 292 F.3d 512 (7th Cir. 2002); Chicago Board of Education v. Substance, Inc., 354 F.3d 624 (7th Cir. 2003). 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.
With respect to the Ellis’s parody image: it seems to me the sole use of Ellis’s images was to present herself to her public. There have been no attempts to market the image, sell it on posters, use it to sell mugs, t-shirts or any other object. As Ellis has not sued over parody images, one can’t say she might not decide to start selling mugs in the hopes of buffing up her copyright case by dreaming up a marketing use, it’s unlikely the parody images would affect sales of Linda Ellis mugs she might subsequently create as there is little evidence there is any market for such items with or without the existence of the parody image. I think image itself has already achieved its main economic goal: Linda Ellis used this publicity photo of Linda Ellis to market Linda Ellis.
The other statutory factors don’t do much in this case. Consider (1), for example. Defendants sold their products in the hope of profit, and made a small one, but they chose the design as a form of political commentary.
In the Sconnie Nation case, Sconnie nation at least sold t-shirts, which factor would be in the interest of the copyright owner. But the court discounted profits on the t-shirts observing the image was used as political commentary. In contrast, use of the the Ellis Troll Caricature is entirely non-commercial. It’s use is 100% political commentary on the subject of copyright trolls.
With regard to the Sconnie Nation parody using the Kienitz photo, the court wrote,
Factor (2) is unilluminating, and as we have mentioned Kienitz does not argue that defendants’ acts have reduced the value of this photograph, which he licensed to Soglin at no royalty and which is posted on a public website for viewing and downloading without cost.
I would suspect any court would view use of Ellis’s image similarly: it too was posted on a public website and downloaded without cost.
Reading over the ruling in Kientiz v. Sconnie Nation, and comparing it to any case Linda Ellis might contemplate vis-a-vis her troll caricature, it seems to me a court reasoning as the 7th circuit would find that all 4 factors in fair use argue for “fair use” in the case of Linda Ellis’s image. Of course, I’m not an attorney, but that’s how it read to me.
I’d now like to turn to the closing in the 7th circuit ruling.
Two things can be said for Kienitz. First, defendants did not need to use the copyrighted work. They wanted to mock the Mayor, not to comment on Kienitz’s skills as a photographer or his artistry in producing this particular photograph.
I can’t speak for the artist who created the Linda Ellis Troll Caricature. However, it seems to me that one of the reasons the Caricature is effective is that the outline of the face (which is not a copyrightable element) is retained, and matches that on the original. As such, it is possible for those familiar or Ellis’s own promotional materials to recognize the underlying image is Linda Ellis rather than someone else. The ability of people to recognize this as Linda herself is important to the message being communicated, which is not merely that some unnamed woman is a troll, but that this particular woman is a copyright troll. Given the degree of transformation required to turn any original into a “troll” image, it was necessary to start with an image Ellis actually uses to promote herself. It is unlikely the parodist would be able to snap such an image by following Ms. Ellis around with a camera hoping to take a suitable photo of their own.
Moreover, even if the parodist could take their own photo, or hire someone to do so, the alternative photo likely would not create the full message intended by the parody. It likely is the intention of the parodyist to mock this specific image which, in the opinion of the parodist precisely because it is the one chosen by Ellis to convey the impression of a personality that is at variance with her business practices. The message that Ellis is not the person her marketing materials present is one that can best be conveyed by parodying the marketing materials she actually uses; alternatives are less suitable in this regard.
Given these final elements, I suspect the case in favor of fair use is stronger in the Linda Ellis Troll Caricature than in the Sconnie Nation Parody of Kienitz’s photo of Mayor Soglin. That said: you may disagree. So, what do you think?