Copyright Fair Use: Can I Use a Politician’s Headshot in a Political Blog?
I’ve talked about copyright fair use often on this blog, but I haven’t had many opportunities to talk about it in the context of political speech. Generally speaking, political speech is afforded the highest level of protection under the First Amendment. Accordingly, when a fair use defense is asserted in a copyright infringement case, the political nature of the alleged infringer’s publication will be taken into account. So what does this mean for political blogs when it comes to politicians’ headshots?
The US District Court for the Northern District of California recently ruled on this issue in Dhillon v. Doe (the link goes to the Order Granting Summary Judgment).
Harmeet Dhillon is an attorney, the vice chairman of the California Republican Party, and the Chairman of the San Francisco Republican Party. (Yes, there are Republicans in San Francisco, ha ha, let’s move on.) Ms. Dhillon commissioned a headshot in connection with her unsuccessful candidacy for Member of the State Assembly. The photo was a work made for hire, and Ms. Dhillon owned the copyright.
MungerGames.net is a website run by anonymous conservatives who opposed Ms. Dhillon’s socially liberal views. They ran a blog post entitled “Meet Harmeet” in which they discussed Ms. Dhillon. This blog post included a copy of the headshot, for which they did not ask permission. Ms. Dhillon sued for copyright infringement. The defendants asserted a defense of fair use.
Section 107 of the U.S. Copryight Act lists four factors to be considered when determining whether a copyright infringement is entitled to a fair use defense:
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for, or value of, the copyrighted work
Let’s see how the Dhillon v. Doe court went through the four factors:
Factor 1. The Purpose and Character of the Use
To start, the court found that the use of the image was noncommercial. There was no evidence that MungerGames.net has any commercial purpose or has been monetized in any way by the defendants. The court then turned to the question of whether or not the use of the photo was “transformative.” Citing prior cases, the Order states:
Whether a use is transformative depends upon whether the new use “supersede[s] the objects of the original creation,” or instead, serves a new purpose…Even making an exact copy of a protected work may be transformative, provided “the copy serves a different function than the original work.”
The court found that the use was, in fact, transformative. The court stated:
Rather than using the headshot photo as a positive marketing tool, as the plaintiff did, the defendant used the headshot photo as part of its criticism of, and commentary on, the plaintiff’s politics…Such a use is precisely what the Copyright Act envisions as a paradigmatic fair use…The Court finds that the defendant’s use of the headshot photo was transformative because it served the purpose of criticism, rather than identification. (Emphasis mine.)
Spoiler Alert: at this point, it’s fair to say that the defendants had successfully asserted their fair use defense. Nonetheless, I’ll examine how the court handled the other 3 factors.
Factor 2. The Nature of the Copyrighted Work
While acknowledging that the headshot “was intended to be more informational than creative,” the court nonetheless found that the photo was a creative work. Point in favor of Ms. Dhillon, for what it’s worth (not much.)
Factor 3. Amount and Substantiality of Use
MungerGames.net used the whole photo, but even Ms. Dhillon agreed that it wouldn’t have been feasible for them to use only part of the image. The court found this factor to be a draw. Moving on…
Factor 4. The Effect on the Market For and Value Of the Work
The court rightly found that there was no market for this headshot, so this factor weighed in the defendants’ favor:
The plaintiff fails to allege that she ever attempted to sell the headshot photo at any time in the past, or that she had any plans to attempt to do so in the future. In short, the plaintiff has failed to allege that any market ever existed for the sale or licensing of the headshot photo, or that such a market might have developed at any future time.
Obviously, the court held that MungerGames.net’s use of the photo was fair, and therefore didn’t allow Ms. Dhillon’s copyright infringement case to proceed.
What About the Attorney’s Fees?
Ms. Dhillon did have one small victory – the court failed to award the defendants their attorney’s fees and costs. When are attorney’s fees and costs awarded in copyright matters? The court provided an answer, citing prior cases:
Attorney’s fees are not awarded in copyright cases as a matter of course…Instead, “[p]revailing plaintiffs and prevailing defendants are to be treated alike, but attorney’s fees are to be awarded to prevailing parties only as a matter of the court’s discretion.”…The most important factor for the Court to consider in deciding whether a fee award is appropriate “is whether an award will further the purposes of the [Copyright] Act.”
Here, the court found that Ms. Dhillon’s position was “not completely unreasonable,” so they denied the defendants’ claim for fees and costs.
Noncommercial political bloggers can take some comfort in this ruling as further evidence that they can freely use these types of images where appropriate. However, in the event the copyright owner sues, the result may be a substantial legal bill in defending that position. Unfortunately, this economic factor may end up having a chilling effect on the Constitutionally-protected right to use images for the purpose of political speech.