How much of a photo do you need to alter to avoid copyright infringement? Hint: Cheshire Cat
2 12 2015Stanford University Library
December 22, 2014
Mary Minow
Bloggers and artists often ask, “how much of a photo do you need to alter to avoid copyright infringement?” Five changes? Fifteen? The Seventh Circuit addressed the issue in the Kienitz v Sconnie Nation case recently. According to the court, Sconnie Nation made t-shirts displaying an image of Madison Wisconsin mayor Paul Soglin, using a photo posted on the City’s website that was authored by photographer Michael Kienitz.
The court looked to the Cariou v Prince decision, but complained that its approach to appropriation art looked only at whether a work is “transformative” and doesn’t fully address a copyright owner’s derivative rights under 17 U.S.C. Sect. 106(2). This court analyzes the market effect, looking to see if the contested use is a complement to the protected work (allowed) rather than a substitute for it (prohibited).
The photographer in this case did not claim that the t-shirt was a disruption to his own plans to license the photo for t-shirts or tank tops. He did not argue that demand for the original work was reduced.
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