Michael Kienitz v. Sconnie Nation, LLC
766 F.3d 756
7th Cir.2014Background
- Plaintiff Michael Kienitz is a photographer who took a photo of Mayor Paul Soglin and posted it on the City of Madison website with Kienitz’s permission.
- Defendants (Sconnie Nation and a vendor) downloaded that photo, heavily edited it (posterized, removed background, changed colors) and used the altered image on 54 T‑shirts/tank tops reading “Sorry for Partying.”
- Kienitz sued for copyright infringement; the magistrate judge granted summary judgment for defendants, finding fair use.
- The parties disputed whether the altered image was a “transformative” use and how transformative a use must be to qualify as fair use.
- The Seventh Circuit affirmed, applying the four statutory fair‑use factors (17 U.S.C. §107) and emphasizing market effect and the amount/substantiality of the portion used.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants’ use is fair use | Kienitz: defendants copied and commercially exploited his photograph without permission | Defendants: altered image for political commentary; use is transformative and protected | Held: Fair use — defendants prevailed |
| Role of “transformative” inquiry | Kienitz: transformation insufficient or irrelevant if statutory factors weigh against fair use | Defendants: transformation (artistic/political comment) supports fair use strongly | Held: Court skeptical of using transformation alone; must apply §107 factors rather than subsume §106(2) into a single test |
| Market effect (factor 4) — did use harm plaintiff’s market | Kienitz: argued potential long‑term licensing harm (photos used against subjects) | Defendants: no evidence they displaced any actual or contemplated market for the photograph or its licensed uses | Held: Factor favors defendants — apparel is not a substitute and Kienitz showed no licensing market lost |
| Amount/Substantiality (factor 3) — how much of original used | Kienitz: started with his photo, so taking the face matters | Defendants: so much of the original’s detail was removed (posterized, low resolution, background gone) that little protectable expression remained | Held: Factor favors defendants — remaining elements are unprotectable outline/smile and a different visual effect |
Key Cases Cited
- Campbell v. Acuff‑Rose Music, 510 U.S. 569 (1994) (Supreme Court recognition of transformative use as relevant to fair‑use analysis)
- Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013) (Second Circuit treated transformative use as dispositive for certain appropriation art)
- Ty, Inc. v. Publications Int’l, 292 F.3d 512 (7th Cir. 2002) (market‑effect analysis under factor four distinguishes complements from substitutes)
- Chicago Bd. of Educ. v. Substance, Inc., 354 F.3d 624 (7th Cir. 2003) (applies fair‑use factors including market effect)