Political Mailer’s Use of Photo Falls Under Fair Use

By Kehl Bayern / March 22, 2019

Last Updated on by

A Montana judge has ruled against a photographer who sued the Republican Party for using her photograph on a political mailer.

In a ruling that declared the photo’s placement on the mailer “fair use,” the Montana judge shocked many photographers who don’t exactly think that what the RNC’s use of Erika Peterman’s photo of Rob Quist constitutes fair use. Sure, no money was made off of the photo, but it was still used without her consent.

Political Mailer’s Use of Photo Falls Under Fair Use
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Political Mailer’s Use of Photo Falls Under Fair Use

Image via Pixabay from Pexels.com.

And, to be clear, it isn’t like the political mailer made any serious changes to Peterman’s photo aside from that addition of the text: “For Montana conservatives, liberal Rob Quist can’t hit the right note.”

Interestingly, Peterman shot the photo of Quist was commissioned by the Montana Democratic Party which hired her to cover a political rally according to PetaPixel.

Judge Dana L. Christensen said that this text was enough of a change to qualify for fair use.

The judge’s ruling reads in part: “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. …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.”

Another consideration highlighted by PetaPixel is that the mailer’s use of the photo doesn’t impact its future ability to earn money. Additionally, Christensen argued that Peterman received enough compensation when she was paid $500 to photograph the event.

Christensen continues in her ruling: “Peterman received the entirety of her $500 fee to photograph the Mansfield Metcalf Dinner …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.”

In a response published by DPReview and PDN, Peterman says, “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.”


About the author

Kehl Bayern

Kehl is our staff photography news writer and has over a decade of experience in online media and publishing and you can get to know him better here

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