“Munger Games” Political Copyright Case Fails to Survive Summary Judgment on Fair Use

Dhillon with border

From the mungergames.net website

On February 26, 2014, the Northern District of California issued its opinion in Dhillon v. Does 1-10.  Judge Susan Illston held that the use of a political campaign photograph by one’s political enemies is fair use.

The Munger Games is a political blog run by anonymous California conservatives who are not fans of socially liberal California Republican politics, exemplified in their eyes by businessman Charlie Munger. On February 12, 2013, the blog set its sights on Harmeet Dhillon, Vice Chair of the California Republican Party, by publishing “Meet Harmeet,” an article criticizing Dhillon’s involvement with the ACLU.  To illustrate the article, the Munger Games published an official headshot from Dhillon’s prior campaign for State Assembly.  Dhillon quickly registered the photograph with the Copyright Office and then, on April 1, 2013, sued the “John Does” behind the site for copyright infringement. In January 2014, prior to discovery, Messrs. Doe moved for summary judgment on the grounds of fair use.

It took only about a month for Judge Illston to issue a decision determining that this was “paradigmatic fair use.” As to the first fair use factor (the purpose and character of the use), the Munger Games’ copying and display of the photograph was noncommercial and for the purpose of political commentary. Moreover, even though the Munger Games republished an exact copy of the photograph, the use nevertheless was transformative because it was for a different purpose: Dhillon used the image to make herself look good, while the Munger Games used it to make her look bad. Simple as that.

As to the fourth fair use factor (the effect on the potential market), the court found that Dhillon failed to establish that there was any market at all for her photograph, as she had never before sought or received a licensing fee for its use.  Dhillon countered with an interesting argument, to wit, that the relevant market for the photograph was herself. In other words, Dhillon created the photograph for her own use in political campaigns and, ever since the image became associated with the Munger Games site, she (the market) no longer wanted to use it. Thus, the market had been harmed. The court felt that this argument did not adequately address the economics of the market factor and, on the contrary, was an admission that the defendants’ use of the photograph had been critical, and therefore transformative.

Although Judge Illston held that the use was fair, she did not allow the defendants’ motion for attorneys’ fees, in part because Dhillon did not lose on every fair use factor.  She prevailed on the second factor (the photo was creative enough to deserve copyright protection), and the third factor (the amount used) was neutral.  Thus, the court held, her claim “was not completely unreasonable.”

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