Is using a photograph in a political advertisement fair use in the United States?

A copyright is a set of exclusive rights granted to the creator of a new expressive work. United States copyright law states that a copyright is granted when an original work of authorship is fixed in any tangible medium of expression. The language is broadly interpreted to include many different types of creators, not just authors of books. This means painters, film makers, and photographers are also granted copyright protection when the law refers to authors.

When an author creates a new work, they are automatically granted a copyright to the work. A copyright can be registered with the United States Copyright Office to gain additional rights, but registration is not necessary for the copyright to be granted. A copyright grants its owner the elusive right to reproduce, distribute, perform, display, transmit and create derivative works based on the original work. If someone other than the copyright owner exercises one of these exclusive rights, that can be considered copyright infringement. A copyright owner can stop copyright infringement by filing a lawsuit which requests an injunction and get monetary damages for copyright infringement which has occurred.

The exclusive rights associated with copyright do have some limitations. An important limitation to the rights granted by a copyright is fair use. In its most general sense, copyright fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. Fair use is a defense to copyright infringement that must be plead by a defendant in a copyright infringement lawsuit. When a fair use defense is asserted, courts in the United States will review four factors in evaluating the defense. The four factors are (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion taken, and; (4) the effect of the use upon the potential market for the copyrighted work. Fair use is highly dependent on the facts of the case and is open to subjective interpretation, so it can be difficult to predict whether a court will side with a defendant when a fair use defense is presented.

In the United States certain types of speech is protected more than other types. For instance if copyright infringement involves advertising or commercial speech, it is less likely that they will succeed with a fair use defense than if the alleged infringement involves political speech.

A case which illustrates a successful use of the fair use defense to copyright infringement, in the context of political speech, is PETERMAN v. REPUBLICAN NATIONAL COMMITTEE, 17-66-M-DLC (D. Mont. 2019) The plaintiff in this case is a photographer who was hired and paid to photograph a democratic politician at an event. The plaintiff granted an unrestricted license to the politician to use the plaintiff’s photographs. The politician posted some of the plaintiff’s pictures on social media. A politician that was running against the democratic politician used the plaintiff’s picture in a political advertisement which criticized the democratic politician. The advertisement was prepared by a vendor who downloaded the plaintiff’s picture from the politician’s social media account, photoshopped it, and added a treble clef and text reading “For Montana Conservatives, / Liberal Rob Quist / Can’t Hit the Right Note.”

The District Court found that the defendant’s unauthorized use of the plaintiff’s photograph was a fair use. The court found that the pictures were used unaltered, and therefore not transformative. However the addition of critical commentary to the photos were enough to change the function and meaning of the photographs to make the defendant’s use transformative. The first factor weighed in favor of fair use because the political advertisements were not commercial. The second factor was found to be inconclusive in this case. The court found that the third factor weighed against fair use because the photographs were reproduced almost completely. The fourth factor weighed in favor of fair use because there was little monetary value to the photographs and the photographer had been paid for taking the photographs. Ultimately the court found that the first and fourth factors were required of a finding of fair use and granted summary judgement in favor of the defendant.

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