While the 7th Circuit, in Kienitz v. Sconnie Nation LLC, 766 F.3d 756 (2014), affirmed a finding of fair use, the court’s analysis expresses skepticism about the approach used in Prince v. Cariou, 714 F.3d 694 (2013) and may signal increased judicial scrutiny on the always subjective nature of the fair use doctrine. For a prior Nossaman article discussing appropriation art as fair use under the Copyright Act, see here.

At issue in Kienitz is Sconnie Nation’s use of a photograph on the city’s website, of Paul Slogin, the mayor of Madison, Wisconsin. The background and color scheme were changed on the downloaded photo and printed T-shirts were made exhibiting the image next to the phrase “Sorry for Partying,” in protest of Slogin trying to shut down the city’s decades-old Mifflin Street Block Party. In finding fair use, Judge Easterbrook took issue with the 2nd Circuit in Cariou (and presumably the 9th Circuit in Seltzer v. Green Day, Inc., 725 F.3d 1170 (2013) which relied in part on Cariou) for focusing so heavily on transformative use as the exclusive consideration, instead of properly “sticking with the statutory list” of factors codified under Section 107 of the Copyright Act of 1976: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. Moreover, despite emphasizing the “statutory list” of four, the decision appears to be based on economic rationale such that Judge Easterbrook notes that “the most important [factor is] usually the fourth (market effect)” and “a t-shirt or tank top is no substitute for the original photograph.”

There has been much negative commentary about the Kienitz opinion, calling its criticism of Cariou misplaced because: (i) the 2nd Circuit considered all of the fair use factors and applied them faithfully on a sliding-scale approach; (ii) the 2nd Circuit did not analyze transformative use as a separate factor but instead performed this analysis under the first “purpose and character of the use” factor; and (iii) the fair use factors are non-exclusive and are not limited to the four factors enumerated in Section 107. Further critique of Judge Easterbrook’s decision contends that it departs from recent precedent, given the framework provided by the U.S. Supreme Court in Campbell v. Acuff-Rose Music Inc., 510 U.S. 569 (1994), which explained that a work is transformative if it does not “merely supersede the objects of the original creation” but “instead adds something new with a further purpose or different character, altering the first [work] with new expression, meaning, or message.”

Yet, beyond the commentary, the Kienitz decision exemplifies the uncertainty that still remains in this area of Copyright law. The notion, as Easterbrook describes it, of exclusive reliance on “transformativeness” in assessing appropriation art as fair use is dangerous, insomuch as it leaves a very subjective and artistic determination to persons trained primarily in the law. Given this context, the fact intensive and uncertain nature of the fair use tug-of-war between the property rights that Copyright law establishes, and the ability of authors, artists and the rest of us to express them ourselves in furtherance of creative endeavors, is not surprising and Kienitz may have just opened the door for similar controversial opinions.