In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 13-3004

MICHAEL KIENITZ,

Plaintiff-Appellant,

v.

SCONNIE NATION LLC and UNDERGROUND PRINTINGWISCONSIN, L.L.C.,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 12-cv-464-slc — Stephen L. Crocker, Magistrate Judge.

____________________

ARGUED JANUARY 24, 2014 — DECIDED SEPTEMBER 15, 2014

____________________

Before BAUER, EASTERBROOK, and WILLIAMS, Circuit Judges.

EASTERBROOK, Circuit Judge. While a student at the University of Wisconsin in 1969, Paul Soglin attended the first 

Mifflin Street Block Party, whose theme (according to Soglin) 

was “taking a sharp stick and poking it in the eye of authority.” Now in his seventh term as Mayor of Madison, Wisconsin, Soglin does not appreciate being on the pointy end. He 
2 No. 13-3004

wants to shut down the annual event. For the 2012 Block 

Party, Sconnie Nation made some t-shirts and tank tops displaying an image of Soglin’s face and the phrase “Sorry for 

Partying.” The 54 sales, on which Sconnie Nation cleared a 

small profit, led to this suit, in which photographer Michael 

Kienitz accuses Sconnie Nation and its vendor of copyright 

infringement.

Sconnie Nation concedes starting with a photograph that 

Kienitz took at Soglin’s inauguration in 2011. Soglin (with 

Kienitz’s permission) had posted it on the City’s website, 

from which Sconnie Nation downloaded a copy. The photograph was posterized, the background was removed, and 

Soglin’s face was turned lime green and surrounded by multi-colored writing. Here are the original and the revision:
No. 13-3004 3

A magistrate judge, serving by consent under 28 U.S.C. 

§636(c), granted summary judgment for the defendants, 

holding that Sconnie Nation had made fair use of the photo. 

965 F. Supp. 2d 1042 (W.D. Wis. 2013).

Fair use is a statutory defense to infringement. The Copyright Act sets out four non-exclusive factors for a court to 

consider. 17 U.S.C. §107. The district court and the parties 

have debated whether the t-shirts are a “transformative use” 

of the photo—and, if so, just how “transformative” the use 

must be. That’s not one of the statutory factors, though the 

Supreme Court mentioned it in Campbell v. Acuff-Rose Music, 
4 No. 13-3004

Inc., 510 U.S. 569, 579 (1994). The Second Circuit has run 

with the suggestion and concluded that “transformative 

use” is enough to bring a modified copy within the scope of 

§107. See, e.g., Cariou v. Prince, 714 F.3d 694, 706 (2d Cir. 

2013). Cariou applied this to an example of “appropriation 

art,” in which some of the supposed value comes from the 

very fact that the work was created by someone else.

We’re skeptical of Cariou’s approach, because asking exclusively whether something is “transformative” not only 

replaces the list in §107 but also could override 17 U.S.C. 

§106(2), which protects derivative works. To say that a new 

use transforms the work is precisely to say that it is derivative and thus, one might suppose, protected under §106(2).

Cariou and its predecessors in the Second Circuit do not explain how every “transformative use” can be “fair use” 

without extinguishing the author’s rights under §106(2).

We think it best to stick with the statutory list, of which 

the most important usually is the fourth (market effect). We 

have asked whether the contested use is a complement to the 

protected work (allowed) rather than a substitute for it (prohibited). See Ty, Inc. v. Publications International Ltd., 292 F.3d 

512 (7th Cir. 2002); Chicago Board of Education v. Substance, 

Inc., 354 F.3d 624 (7th Cir. 2003). A t-shirt or tank top is no 

substitute for the original photograph. Nor does Kienitz say 

that defendants disrupted a plan to license this work for apparel. Kienitz does not argue that defendants’ products have 

reduced the demand for the original work or any use of it 

that he is contemplating.
No. 13-3004 5

Here is the list in §107:

In determining whether the use made of a work in any particular 

case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether 

such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Other than factor (4), which we have discussed already, only 

(3)—the amount taken in relation to the copyrighted work as 

a whole—has much bite in this litigation. Defendants removed so much of the original that, as with the Cheshire 

Cat, only the smile remains. Defendants started with a lowresolution version posted on the City’s website, so much of 

the original’s detail never had a chance to reach the copy; the

original’s background is gone; its colors and shading are 

gone; the expression in Soglin’s eyes can no longer be read; 

after the posterization (and reproduction by silk-screening), 

the effect of the lighting in the original is almost extinguished. What is left, besides a hint of Soglin’s smile, is the 

outline of his face, which can’t be copyrighted. Defendants 

could have achieved the same effect by starting with a snapshot taken on the street.

The other statutory factors don’t do much in this case. 

Consider (1), for example. Defendants sold their products in 

the hope of profit, and made a small one, but they chose the 

design as a form of political commentary. Factor (2) is unilluminating, and as we have mentioned Kienitz does not ar-
6 No. 13-3004

gue that defendants’ acts have reduced the value of this photograph, which he licensed to Soglin at no royalty and which 

is posted on a public website for viewing and downloading

without cost.

Two things can be said for Kienitz. First, defendants did 

not need to use the copyrighted work. They wanted to mock 

the Mayor, not to comment on Kienitz’s skills as a photographer or his artistry in producing this particular photograph.

There’s no good reason why defendants should be allowed 

to appropriate someone else’s copyrighted efforts as the 

starting point in their lampoon, when so many noncopyrighted alternatives (including snapshots they could 

have taken themselves) were available. The fair-use privilege 

under §107 is not designed to protect lazy appropriators. Its 

goal instead is to facilitate a class of uses that would not be 

possible if users always had to negotiate with copyright 

proprietors. (Many copyright owners would block all parodies, for example, and the administrative costs of finding 

and obtaining consent from copyright holders would frustrate many academic uses.)

Second, this use may injure Kienitz’s long-range commercial opportunities, even though it does not reduce the 

value he derives from this particular picture. He promises 

his subjects that the photos will be licensed only for dignified uses. Fewer people will hire or cooperate with Kienitz if 

they think that the high quality of his work will make the 

photos more effective when used against them! But Kienitz 

does not present an argument along these lines, and the consideration in the preceding paragraph is not enough to offset 

the fact that, by the time defendants were done, almost none 
No. 13-3004 7

of the copyrighted work remained. The district court thus 

reached the right conclusion.

AFFIRMED