Kienitz, a professional photographer, took a photo of Wisconsin’s mayor, Soglin, and authorized him to use it as his official portrait. Defendants created a T-shirt using an altered version of Soglin’s face and the slogan “sorry for partying.” Kienitz sued, and the court found fair use.
Kienitz argued that the shirt wasn’t transformative because it wasn’t a commentary on his photo, but rather on its subject matter. (Which demonstrates why that distinction is so terrible: critics should not be required to photo-stalk their targets or have drawing skill.) The court found that (1) there might be some commentary on the officialness of the portrait/presenting the mayor as he wished to be presented (“the garishness of Soglin’s re-colored visage could be viewed as mocking the gravitas and rectitude with which Kienitz’s now-official portrait imbues the mayor”), and (2) loose targeting may be enough to be transformative. Quoting Cariou, the court held that new meaning/expression/message sufficed for transformativeness even if the work didn’t comment on the original or its author. Factors one and four were also intertwined: the shirts had no capacity to divert sales from the original photo.
Factors two and three got discussed, but who cares? (Except insofar as this case provides further evidence that, where photomanipulations are concerned, courts aren’t interested in parsing whether the defendant took anything from the photo that the plaintiff actually owned—the creative elements of lighting, timing, and framing are missing from defendant’s shirt, but the court used that as part of factor three analysis rather than determining that there was no infringement to begin with, which I think would’ve been a superior analysis. This seems to be the flip side of a phenomenon Eva Subotnik has identified, in which courts protect a photo as creative by noting that it has the characteristics that make it a photo: it was taken at a certain time, it had a certain frame, there was lighting, etc. On the infringement side, courts hold that a photo was copied because its subject is recognizable, regardless of whether the creative elements of the photographer’s choices are visible in the new use, and fair use instead of fact/expression is the limiting doctrine.)
The court then found no market harm. Side-by-side viewing was enough to establish this. “Anyone seeking a photographic portrait—or even just an accurate representative image—of the mayor would not even consider the garish image of the mayor splashed onto defendants’ SFP shirts. That would be enough to quash the sale, but there’s also the mocking apology garlanding the cartoonish image which partially blocks the mayor’s features and which would totally irritate viewers who deemed Mayor Soglin to be worthy of and deserving more respect.” Fatally, Kienitz himself testified that he would never license a photograph for the purpose of criticizing, mocking, parodying or satirizing one of his subjects.