Kienitz v. Sconnie Nation hits 7th Circuit on appeal

A federal copyright lawsuit by Madison-based photographer Michael Kienitz has reached the U.S. 7th Circuit Court of Appeals in Chicago. Oral arguments were held Friday, Jan. 24, 2014, in Michael Kienitz v. Sconnie Nation, LLC. Here is a 26-minute MP3 recording of the debate.

In 2012, Kienitz (a WNPA member) levied a federal copyright lawsuit against Sconnie Nation, an apparel retailer, for their use of his portrait of Madison mayor Paul Soglin on a t-shirt mocking the public official. Sconnie Nation claimed their treatment of Kienitz’s work was transformative enough to be a defensible fair use, and that there was essentially no significant demonstrable harm to Kienitz.

In August 2013, magistrate judge Stephen Crocker of the U.S. District Court – Western District of Wisconsin ruled in favor of Sconnie Nation, concluding they had “met their burden with respect to the affirmative defense of fair use” and granting them summary judgement.

Friday’s oral arguments focused on both the issues of transformation, as well as harm to Kienitz and the market he operates in.

“At least to an untutored eye like mine, all that seems to be left is Paul Soglin’s face,” said the Hon. Frank Easterbrook. “So the question is whether the copyrightable elements [of Kienitz’s photograph] are in that t-shirt.”

Later in the arguments, Easterbrook compared this suit to that involving Shepard Fairey who designed the Barack Obama “Hope” campaign poster from an Associated Press photograph taken by freelance photographer Mannie Garcia.

“This isn’t the same quality as the ‘HOPE’ poster,” said Easterbrook, probing Sconnie Nation’s attorney. “But that lawsuit was brought and before it settled, the district judge in that case said that the plaintiff was a ‘surefire winner.’ Now I don’t see any material difference.”



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