SIGNIFICANCE: KIENITZ V. SCONNIE NATION
For an annual block party, apparel company Sconnie Nation made t-shirts featuring the face of Madison, Wisconsin Mayor Paul Soglin and the phrase “Sorry for Partying.” Photographer Michael Kienitz, who captured the image that served as the basis for the clothing design, sued for copyright infringement. Sconnie Nation’s changed the image by turning Soglin’s face into an outline, changing its color to lime green, and replacing the background with the multi-colored phrase. The court held that this did not violate copyright because it was fair use of the photograph.
To determine fair use, the court applied a four-factor test, which looked at 1) the purpose and character of the use (commercial or nonprofit), 2) the nature of the copyrighted work, 3) the portion used compared to the whole, and 4) the effect on the potential market for or value of the copyrighted work. The court relied mostly on the last two to determine fair use: 3) Sconnie Nation removed so much of the original photograph that only an outline of Soglin’s face was left, and 4) apparel sales would not affect the market for the original photograph. The court expressed skepticism of the “transformative use” approach in Cariou v. Prince because it replaced this four-factor test outlined in federal regulations and could override another regulation that protects derivative works.