RNC Use of Photo Without Permission on Political Mailer is Fair Use: Judge

A federal court judge in Montana has sparked controversy among photographers after he ruled that the Republican National Committee (RNC) didn’t infringe a photographer’s copyright when it used her photo without permission on a political mailer.

Missoula, Montana-based photographer Erika Peterman filed a lawsuit against the RNC back in 2017 after she discovered that it had used one of her photos of Democratic congressional candidate Rob Quist in a mailer attacking him.

Here’s the original photo by Peterman showing Quist onstage wearing a cowboy hat during a campaign event:

And here’s how it appeared in the mailer that was sent out by the RNC:

As you can see, the mailer version of the photo appears to be unedited aside from a crop and the addition of a treble clef and the words: “For Montana conservatives, liberal Rob Quist can’t hit the right note.”

Peterman had shot her photo after being hired by the Montana Democratic Party to cover the event. In her lawsuit against the RNC, Peterman demanded monetary damages, an order for the RNC to stop using her photo, attorney fees, and other expenses.

Judge Dana L. Christensen ruled against Peterman, arguing that the RNC’s use of the photo was transformative enough to qualify as fair use.

“The mailer uses Quist’s musicianship to criticize his candidacy, subverting the purpose and function of the Work,” Christensen writes. “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.

“[…] Quist is isolated on stage, lights shining down, conveying a sense of stark emptiness and suggesting that there is no connection between the musician and the unseen audience. In this context, the image takes on a new meaning.”

Christensen also believes that the RNC’s use of Peterman’s photo didn’t negatively affect the market for Peterman’s photo, a second factor considered when determining whether the unauthorized use of a copyrighted work is fair use. The judge argues that Peterman already received full compensation for the photo by getting paid $500 to cover the campaign event and that the photo doesn’t likely have any further commercial value to Peterman.

“Peterman received the entirety of her $500 fee to photograph the Mansfield Metcalf Dinner,” Christensen writes. “With Peterman’s permission and pursuant to an agreement that Peterman would receive no additional fee for their use of the Work, the Quist Campaign and the MDP made the Work available for download on Facebook without including any photographer attribution or copyright information.

“It is unclear how the Work could conceivably have any future commercial value to Peterman. The Work has no recognizable value outside of Quist’s congressional campaign, and that value has been fully realized by Peterman.”

Do you agree that this use of the copyrighted photo is fair use?

Peterman disagrees with the ruling but isn’t planning to appeal due to the financial burden of waging a costly legal battle.

“I think equating political criticism to transformative use is pretty far-reaching,” the photographer says in an email statement provided to both PDN and DPReview. “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.”