Photographer loses lawsuit against Republicans due to Fair Use

A photographer has lost a lawsuit against the Republican National Committee for using her photograph without authorization.

Erika Peterman, who took a photo of Democratic congressional candidate Rob Quist in March 2017 during an event held by the Montana Democratic Party, retained ownership of the photo, but gave Quist and the Montana Democratic Party a license to use them. The Quist campaign posted them on Facebook, without crediting Peterman.

Someone from the Republican National Committee (RNC) then took the photo off Quist’s Facebook site, cropped it and added the words, "For Montana conservatives, liberal Rob Quist can’t hit the right note," using the photo in a flyer attacking Quist.

Peterman sued the RNC in May 2017 after learning about the flyer. She claimed she had been hired by the Montana Democratic Party to photograph Quist only to discover that her image had been used without permission by the RNC in a mailer supporting Republican candidate Greg Gianforte, who eventually won the election.

Federal court judge Dana L. Christensen of the found RNC’s efforts to transform the photo not sufficiently transformative. There were minimal alterations to the photo as the RNC cropped it to fit the mailer and included a stream of light from the stage shining at Quist.

But Christensen said: "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."

The court found that the placement of the image in the mailer changed the function and meaning of the work by connoting a critical message not inherent to the work itself. The court also found the RNC’s use of the photo to be non-commercial, saying the RNC was able to use it as part of "Fair Use" inquiry.

Fair Use permits copyright infringement provided certain ‘fairness factors’ are met. Transforming a protected work into ‘something new’ is the major factor. Fair use has allowed artists like Richard Prince to profit from photographing or using another photographer’s work.

Richard Prince is an artist known for appropriating imagery by re-photographing them, making slight alterations, and re-publishing them. One of his (in)famous works is his "rephotographing" of Marlboro cigarette advertisements, specifically those featuring the Marlboro Man. A piece from the series sold for more than US$3 mln at a 2014 Sotheby’s auction.

Peterman thinks "equating political criticism to transformative use is pretty far-reaching." But she said she is not appealing: "Not because I don’t think the decision is wrong, because I do. However, even if my decision were reversed and remanded back to the district court for a trial on whether the RNC’s use of my photo was 'transformative', I would again be in front of the same judge and the outcome would probably be the same. Additionally, I would most likely have to pay the RNC’s costs and possibly their attorney fees. That’s thousands and potentially hundreds of thousands of dollars I don’t have."