A federal judge in Montana has ruled that a “transformed” photograph of a Congressional candidate by the opposing party is fair use, and thus not actionable as copyright infringement. In Peterman v. Republican National Committee, case number 9:17-cv-00066 (D. Mont.), the court granted the RNC’s motion for summary judgment, dismissing the case brought by photographer Erika Peterman over the RNC’s use of Peterman’s photograph of Democratic Congressional candidate Rob Quist in a mailer. The court found, inter alia, that the RNC had sufficiently transformed Peterman’s image of Quist at a fundraising event by using the photo in a mailer that mocked the candidate’s background as a singer-songwriter.

Peterman sued the RNC in 2017, claiming she’d been hired by the Montana Democratic Party to photograph Quist only to discover that her image had been used without permission by the RNC in a mailer supporting Republican candidate Greg Gianforte, who eventually won the election.

The mailer, with the headline “Tell Liberal Rob Quist: It's Time to Face the Music," featured three photos of Quist taken from his campaign Facebook page without permission. One of the photos was Peterman’s, for which she’d retained ownership but had licensed to the campaign for free.

On cross-motions for summary judgment on the issue of fair use, the court found that the RNC’s minimal alterations to the photo, cropping it to fit the mailer and adding a stream of light from stage lights shining at Quist, were not, on their own, sufficiently transformative. However, reviewing the entire mailer, the court said, “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.” The court found that the placement of the image in the mailer changed the function and meaning of the work by connoting a critical message not inherent to the work itself. The court also found the RNC’s use of the photo to be non-commercial, “bolster[ing] the RNC's position as to the first factor of the fair use inquiry.”

On the second factor (nature of the copyrighted work), the court noted that the photo had been published previously, and that Peterman herself had posted it to Twitter. The court said, “[A]bsent a complete suspension of common sense, it must be assumed that the MDP, Quist Campaign, and Peterman herself would have welcomed reposts, [etc.] by other pro-Quist social media users.” However, the creativity shown in the photo made this factor inconclusive.

On the final factor (effect on the market), the court ruled that the RNC’s use of the image wouldn’t harm Peterman’s ability to profit from it, noting that Peterman had already granted an unrestricted license to Quist’s campaign as part of her $500 fee to photograph the fundraiser. Per the court, “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.”

The court concluded, “Weighing the four factors of the [fair use] test, the court determines that the undisputed facts establish that the RNC is entitled to judgment as a matter of law… The RNC's use was moderately transformative and wholly noncommercial, and it performed a different market function than did the original.