Copyright Owner Receives the Pointy End of the Fair Use Sharp Stick

The theme of the Madison, Wisconsin, Mifflin Street Block Party when it began in 1969 was “take a sharp stick and poke it in the eye of authority.”  It’s not clear whether that is still the theme of the block party, but now long time Madison Mayor Paul Soglin, who attended the first Mifflin Street Block Party when he was a student at the University of Wisconsin, wants to shut down the annual party.  Sconnie Nation is a company that creates “in-house, unique, masterpieces” “with the goal of spreading Sconnie pride across the country.” Sconnie Nation created t-shirts with an image of Soglin’s face and the phrase “Sorry for Partying” emblazoned on the shirts.

Photographer Michael Kienitz sued Sconnie Nation for copyright infringement.  Sconnie Nation admitted that it created its image of Soglin by starting with a photo Kienitz took of Soglin at Soglin’s 2011 inauguration.  Sconnie Nation then posterized the image, removed the photo’s background, turned Soglin’s face lime green and surrounded the face with multi-colored writing.  The district court granted Sconnie Nation’s motion for summary judgment, ruling that Sconnie Nation’s use was a fair use.  The Seventh Circuit Court of Appeals affirmed.  Significantly, the Seventh Circuit chose not to address whether Sconnie Nation’s use was transformative.

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