Kienitz v. Sconnie Nation LLC

Fair use was found despite commercial gain largely because the commercial gain was "paltry" and the work was a parody.

Opinion (Crocker): Michael Kienitz ("Kientz") is a journalist and photographer that took a picture of Paul Soglin, the Mayor of Madison, Wisconsin. Sconnie Nation LLC ("Sconnie") used the picture of Mayor Soglin to create an image that was put on t-shirts protesting Mayor Soglin's interest in ending an annual political protest in Madison. To determine whether the use of the photograph was fair, the court considered four factors set out by the The Copyright Act of 1976. First, in considering the purpose and character of the use, the court considered the "paltry" amount of money made by the sale of the shirts, ultimately considering the work transformative despite the commercial element. The court further noted that the work should be protected because it was parody. Second, the court noted that although photography is a skilled art, the photo at issue was candid. Further, the image did not usurp the right of first publication. Accordingly, court determined that the nature of the copyrighted work factor weighed equally for both sides. In determining the amount and substantiality of the portion used in relation to the copyrighted work as a whole, the court found that because Sconnie used a negative image and outline of the photograph that Sconnie did not take the heart of the image and that this factor favored fair use. Finally, in determining the effect of the use upon the potential market for or the value of the copyrighted work, the court found that Sconnie's image was not a substitute for Kienitz's image and therefore did not reduce the demand for Kienitz's image. The court accordingly GRANTED Sconnie's motion for summary judgement.