Mickey Osterreicher, general counsel for National Press Photographers Association (NPPA), wrote an open letter to Senator Josh Hawley of Missouri telling him to stop using a photograph on tee shirts and other campaign merchandise. You know the photo. The one of Hawley raising a fist of solidarity to a mob of knuckle-dragging seditionists shortly before many of them stormed the Capitol on January 6th. Captured by Politico staff photographer Francis Chung, Hawley’s merch reproduces the image with the senator cut out of the background, posterized in gray tones, and accompanied by the slogan “SHOW-ME STRONG!” (Yikes). Osterreicher’s letter begins…
Stop merchandising a widely published photo taken before the storming of the U.S. Capitol on Jan. 6, 2021, showing you clenching your fist in support of the mob. Stop being part of a long line of celebrities and politicians who think they can misappropriate images and music created or owned by others without permission, credit or compensation.
Professor of law Brian Frye disagrees. In a tweet posted early this week, Frye first assures readers that he is no fan of Hawley but then states that Osterreicher’s complaint is “ridiculously wrong.” He writes …
Yes, whoever owns the copyright in the photo is entitled to control its use, in order to generate profit. But their rights are limited by the fair use doctrine, which says that people are entitled to use the copyrighted works in order to criticize them … Josh Hawley is using a very well-known photograph of himself to criticize people who criticize him for supporting the January 6th rioters. That is precisely the kind of use the fair use doctrine was intended to protect. In fact, it is the kind of parodic use that the founding father sues to criticize loyalists in the Federalist Papers.
Most of the attorneys I know are reluctant to opine about even hypothetical cases without full knowledge of the facts, but not much more information is needed in this instance for this non-attorney to say that Frye makes at least one assumption that implies an error of fact, which serves as the basis for his multiple errors of law. The argument that Hawley’s merchandise expresses criticism of those of who scorn the senator for his conduct is razor thin in general and beside the point as a fair use consideration.
Any ordinary observer would perceive Hawley’s merch as conveying the same thing the prospective buyers of that merch see in the original photo—a man they revere for showing support for the 1/6 insurrection. That those observers see “hero” while many others see “traitor” has nothing to do with Hawley’s campaign minions adding new expression to the original work such that it would favor a finding of fair use under the first factor analysis for transformativeness. By reproducing the photograph to make and distribute derivative works (i.e., violating three exclusive rights under §106), Hawley has not imbued the image with new meaning within the context of the first prong of the fair use test.
Bizarrely, Frye’s “criticism” rationale would require that Hawley perceive the original photograph as intrinsically conveying “Hawley as traitor” and that the senator’s use of the work intentionally alters the original meaning in order to convey “Hawley as hero and mocking those who criticize him for supporting 1/6.” This is absurd on its face. These opposing perceptions of Hawley are brought by the observers to the image, and Frye is applying an eye-of-the-beholder consideration where it does not belong while inserting the word parody, where it does not apply.
Parody, if it exists at all, must target the work at issue, and not some other subject matter, in order for a use to weigh in favor of fair use. Ditto criticism, commentary, reportage, etc. It is a subtle distinction that confuses a lot of people, though I suspect Frye is expressing his opinion more than revealing any confusion on the matter. As a simple example, if a news organization produces a story about photographer Francis Chung and the moment this photo was taken, then use of the image to illustrate the story would favor a finding of fair use. On the other hand, if the news organization is strictly reporting about Sen. Hawley in general, or his conduct on 1/6, use of the photograph would ordinarily require permission.
Further, Frye misstates the commercial consideration when he uses the word profit as the exclusive interest of the copyright owner. He may wish the exclusive rights of the copyright owner were this narrow, but they are not. A more correct word would be gain. If the party making use of the work gains materially from the use—and seeking career advancement as a politician is a form of gain—any court considering the matter would correctly identify Hawley’s use as commercial, which disfavors a finding of fair use. This would be true even if Hawley’s political operation were giving the merch away for free, which of course, it is not. So, the use is commercial in every sense regardless of “profit.”
Frye compounds these errors of copyright law by implying in his statement that Politico’s enforcement in this instance is being used to stifle Hawley’s speech. He joins other copyright critics in alleging the abuse of copyright law to “shut people up.” And he obviously means it because he doesn’t like Hawley any more than I do. But this is another subtlety often missed or elided about copyright in this context: copyright rights do not preclude a party from speaking but rather preclude a party from using the owner’s expression to speak on their behalf. Because copyright critics fundamentally reject many foundations of copyright rights, they cannot bring themselves to acknowledge that unlicensed use of works can amount to coerced speech, which is itself an infringement of the speech right.
When you believe that copyright law is inherently a form of censorship, it produces some untenable interpretations of fair use. Just because the First Amendment is an underlying rationale for the fair use doctrine, this does not mean that all protected speech favors a finding of fair use. If this were so, the multi-factor fair use analysis would hardly be necessary since protected speech is almost limitless. Frye et al. may advocate this view, but it is not doctrine and never has been.
The image of Hawley itself is blood boiling. A U.S. Senator saluting a 21st Century legacy of the mob James Madison feared—endorsing a dangerous lie to animate a riot which, if successful, would end the constitutional order of the United States. That Josh Hawley happens to be a graduate of Yale Law School—hallowed ground of the Puritan-to-Federalist origins of the country—adds an extra layer of Where the fuck are we? to his emblazoning that image of himself onto cammo pattern beer koozies. I cannot reconcile all that in this post, but at least I can argue with confidence that Hawley’s merch sure as hell ain’t fair use.