Judge Rules ‘Fair Use’ Against Photographer Whose Image of Democrat was Used in Slanderous Republican Campaign

A photographer who discovered the Republican National Committee (RNC) used her image of a Democratic candidate without permission in a political mailer has had her case rejected. In May 2017, photographer Erika Peterman filed a copyright infringement lawsuit after discovering the image had been used without her permission. The photo in question was of Rob Quist, a Democratic congressional candidate who ran against GOP candidate Greg Gianforte in Montana, and was lifted from Quist’s official Facebook page. The image was licensed to the Quist campaign. But despite using it to mock Quist, the RNC claims fair usage on the photo – and has been supported by the courts. Despite the RNC using the image slander the subject’s campaign, a court has ruled it fair use due to the “transformation” applied to the work.

As per the statement:

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. Because of the changes made to the image — those being “moderately transformative and wholly non-commercial [sic]” — RNC were deemed acting within their right. What’s more, the court also claimed that the RNC’s use hadn’t directly prevented Peterman from profiting from the image. As she had also posted it on social media, the court added that “it must be assumed that the MDP, Quist Campaign, and Peterman herself would have welcomed reposts, etc., by other pro-Quist social media users.”

Speaking to DPReview following the ruling, photographer Peterman said:

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 significantly because I do much political photography and work hard to create compelling, creative photos for the candidates I work with.