## Facts

- Michael Kienitz owned the copyright to an official photograph of Madison, Wisconsin Mayor Paul Soglin taken at the mayor’s inauguration and posted on the City of Madison’s website.
- Sconnie Nation LLC created and sold a small batch (54) of T-shirts and tank tops for the 2012 Mifflin Street Block Party.
- Defendants downloaded Kienitz’s photo and edited it by removing the background, posterizing the image, changing the mayor’s face to lime green, and adding multicolored text reading “Sorry for Partying.”
- The design mocked and criticized the mayor’s efforts to restrict the block party, referencing his prior participation as a student.
- Kienitz sued for copyright infringement; defendants admitted using the photo as a starting point and asserted fair use under 17 U.S.C. § 107.

## Issues

1. Whether defendants’ reproduction and altered use of the copyrighted photograph on politically themed apparel constituted fair use under 17 U.S.C. § 107.

## Decision

- The Seventh Circuit affirmed summary judgment for defendants.
- Applying the statutory fair use factors, the court held the use was fair.
- The court treated “transformative use” as a consideration within the statutory factors rather than as the central inquiry.
- The court emphasized that defendants’ alterations left little protectable expression from the original and that the shirts did not substitute for the photo in any relevant market.

## Legal Principles

- Fair use is governed by the statutory factors in 17 U.S.C. § 107; “transformative use” is not a stand-alone test that displaces the statute’s factor-by-factor analysis.
- Substantial alteration that removes most protectable expression from a source work supports fair use, particularly where what remains is largely uncopyrightable (e.g., a general outline or minimal facial features).
- Political commentary and criticism can weigh in favor of fair use even when the use involves commercial sales, depending on the overall purpose and character of the use.
- Market effect is a central consideration: a secondary use is more likely fair when it is not a substitute for the original and there is no showing of harm to actual or reasonably expected licensing markets.

## Conclusion

The Seventh Circuit held that the defendants’ heavily modified, politically critical apparel design qualified as fair use because it retained minimal protectable content from the photograph and did not impair demand for the original or its licensing markets, making the shirts a complement rather than a substitute.


Kienitz v. Sconnie Nation LLC, 766 F.3d 756 (7th Cir. 2014)