It’s been a while since we felt compelled to revisit the topic of political fair use, that is, the extent to which the use of copyrighted works in political campaigns qualifies as a fair use pursuant to 17 U.S.C. § 107. Back in 2014, we discussed the Northern District of California’s holding that the use of a candidate’s photograph by her political enemies was fair use. But the District of Montana recently went the other way in Peterman v. Republican National Committee. Can we square these cases?
Prepare to be sued!
In 2013, a right wing blog in California took aim against Harmeet Dhillon, Vice Chair of the California Republican Party and a prior candidate for State Assembly. The blog published an article critical of Dhillon, and to illustrate the article it used her official campaign photo. Dhillon sued the blog for copyright infringement.
The four factors set forth in the fair use statute are (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount of the copyrighted work used; and (4) the effect on the market. In Dhillon v. Does 1-100, the Northern District of California held that these factors favored fair use for a number of reasons, focusing in particular on the first factor, which usually involves a discussion of (a) whether the use is commercial; and (b) whether the use is “transformative,” i.e., whether it adds new expression and does not supersede the original. Here, the Court held that the defendant’s use (a) was for the noncommercial purpose of political commentary; and (b) was transformative, in that Dhillon used the image to make herself look good while the blog used it to make her look bad. The blog later used the photograph again, this time to comment on the lawsuit, as depicted on the left.
The RNC Can’t Hit the Copyright Note
A few years later, professional photographer Erika Peterman was asked by the Montana Democratic party to create some images of musician Rob Quist. Quist was running in a 2017 special election for Montana’s lone seat in Congress. His opponent was Republican Greg Gianforte (the guy who physically assaulted a reporter on tape the day before he won the election anyway). Anyway, Peterman got a nice photograph of Quist wearing a cattleman’s hat with three lights in the distance. She licensed the image to the Montana Democratic Party.
Somehow, the Republican National Committee (“RNC”) got a hold of the photograph and turned it into an attack ad against Quist. The RNC slapped the photo onto a mailer, printed a treble clef musical notation on the side, and added the text: “Liberal Rob Quist Can’t Hit The Right Note.” Peterman sued for copyright infringement and the RNC moved to dismiss, citing the Dhillon case for the proposition that “the RNC’s transformative use of the photograph for political discourse during an election is precisely what the Copyright Act envisions as paradigmatic fair use.”
But the Montana District Court didn’t buy it, especially with regard to the first factor, and refused to hold that this was fair use as a matter of law. The Court first noted that there was no substantial physical transformation of the image. Sure, the RNC was claiming that it was using the work for a different purpose, but that alone did not mean the RNC had made a transformative alteration of the expression in the original photograph. More importantly, there was no way for the Court to determine if the purpose of the RNC’s use was transformative as compared to the Peterman’s use, because nobody had actually pled the purpose of Peterman’s use. Instead, the RNC’s motion to dismiss focused only the purpose of the use of the photograph by the Democrats, who are not parties to the case. Therefore, whether the use was transformative remained a disputed issue.
A Fifth Fair Use Factor?
Are the rulings of these two courts, both subject to the supervision of the Ninth Circuit, compatible? Both defendants used a political enemy’s campaign photo without significant alteration. In neither case was the defendant criticizing the photograph or the photographer; both defendants were simply using the photograph as an illustration to their criticism of the politician depicted in the photograph. Why is one a transformative purpose and the other a tossup? Are these just two Courts that disagree, or is there a real distinction?
I suppose you could make an argument that one defendant was a non-commercial blogger while the other was a powerful political party the function of which is sort-of more commercial because it solicits donations. But the commercial/non-commercial distinction, which is rarely dispositive, was not discussed by the District of Montana. And given the First Amendment safeguards associated with political speech generally, the difference between the speech of a political blog and that of a political party is probably not worth much.
Here’s another thought to chew on. There are four fair use factors in the statute, but nobody ever said a court can’t consider other factors (in fact, the statute, by including the word “including,” expressly anticipates that there may be others). Recently, a certain Twitter using lawyer suggested the existence of a phantom fifth fair use factor: “Who is enforcing the copyright and why?” Whether or not you agree, the identity of the plaintiffs seems to have made a big difference here. Unlike the photographer plaintiff in Peterman, the plaintiff in Dhillon was not the author of the work but a political competitor of the defendant. Perhaps the Court in Dhillon therefore could infer a transformative purpose from the undisputed oppositional relationship between the parties. By contrast, in Peterman the purposes of the RNC and a professional photographer cannot be assumed to be in opposition, especially on a motion to dismiss. In fact, nothing (except perhaps a contractual promise, which the Court did not mention existed) would have prevented Peterman from licensing her photograph to the RNC as well as to the Democrats. Thus, in theory, she might have shared the RNC’s purpose. So the identity of the plaintiff made a big difference.
On second thought, perhaps this is not really a fifth factor, but just a new gloss on the first factor, or even the fourth. Maybe, but calling it a “fifth factor” is more fun.