This is Erika Peterman's photograph the RNC took from Rob Quist's Facebook page and altered to use on a derogatory mailer. Used with permission. In May 2017, photographer Erika Peterman filed a copyright infringement lawsuit against the Republican National Committee (RNC), alleging the organization had used one of her images for a political mailer without permission.
The image features Rob Quist, a Democratic congressional candidate who had run against GOP candidate Greg Gianforte in Montana.
Peterman's image, which was licensed to the Quist campaign, was used by the RNC without permission as part of a mailer that mocked the politician. In response to the lawsuit, the RNC claimed its mailer represented fair use of the copyrighted image, and Montana judge Dana L. Christensen has sided with that argument.
A photo of the mailer that was sent out to Montana residents by the RNC that used Erika Peterman's photograph without permission. Used (here) with permission.
According to Lexology, the court dismissed Peterman's case, finding that the RNC had 'transformed' the photo adequately enough to claim fair use. Only small visual alterations were made to the image, such as cropping it to fit the mailer, and those edits alone weren't sufficient for it to be considered transformative.
However, the court found that the image's use on a mailer that criticized Quist had transformed the work, stating that the image's inclusion as an element in this critical media qualified as fair use. The court said:
The mailer uses Quist's musicianship to criticize his candidacy, subverting the purpose and function of the Work. With the addition of the treble clefs and text throughout, the mailer attempts to create an association between Quist's musical background and liberal political views… In this context, the image takes on a new meaning.
In addition, the court claimed that the RNC's use hadn't impacted Peterman's ability to profit from the image and that Peterman's had published the image to Twitter and Facebook. By publishing the image on social media, the court stated, 'it must be assumed that the MDP, Quist Campaign, and Peterman herself would have welcomed reposts, [etc. ] by other pro-Quist social media users. '
Ultimately, the federal judge found the RNC's unauthorized use of the copyrighted image to be 'moderately transformative and wholly noncommercial [sic],' stating that 'the court determines that the undisputed facts establish that the RNC is entitled to judgement as a matter of law. "
DPReview spoke with Peterman via email and she shared the following response regarding the ruling:
I think equating political criticism to transformative use is pretty far-reaching. This decision gives any political party (or PAC) the freedom to use artistic or creative photos of political candidates for political criticism under the auspices of fair use. This impacts me greatly because I do a lot of political photography and work hard to create compelling, creative photos for the candidates I work with. And, like any photographer or artist, I also want to share my work. However, if I know that my photos can be used for "political criticism" without my permission, it creates a major dilemma for me.
And no, I'm not appealing. Not because I don't think the decision is wrong, because I do. However, even if my decision were reversed and remanded back to the district court for a trial on whether the RNC's use of my photo was "transformative", I would again be in front of the same judge and the outcome would probably be the same. Additionally, I would most likely have to pay the RNC's costs and possibly their attorney fees. That's thousands and potentially hundreds of thousands of dollars I don't have.
Last, the judge's comments about my sharing the photo on Twitter are incorrect. I posted a different photo of Rob Quist on Twitter, but not the one that was the subject of the lawsuit.
DPReview has contact both the RNC and Peterman for comment. This article will be updated accordingly when and if a response is given.
Update (March 19, 2019): This article has been updated with a quote from Erika Peterman
. dpreview.com2019-3-20 01:11