### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 13

- 3004
M ICHAEL K IENITZ , Plaintiff

- Appellant ,

v.

S CONNIE N ATION LLC and U NDERGROUND P RINTING

W ISCONSIN , L.L.C. , Defendants

- Appellees

.

____________________ Appeal from the Unit ed States District Court for the Western District of Wisconsin

. No. 12

- cv

- 464

- slc

— Stephen L. Crocker
, Magistrate Judge

.

____________________
A RGUED J ANUARY 24, 2014

— D ECIDED S EPTEMBER 15, 2014

____________________

Before B AUER , E ASTERBROOK , and W ILLIAMS , Circuit Judges

. E ASTERBROOK , Circuit Judge

. While a student at the Un iversity 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 author ity.” Now in his seventh term as Mayor of Madison, Wisco nsin, Soglin does not appreciate b eing on the pointy end . He2 No. 13

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wants to shut down the annual even t. F or the 2012 Block Party, Sconnie Nation made some t

- shi rts and tank tops di splaying an image o f 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 conce des 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 phot ograph was posterized, the background was remove d, and Soglin’s face was turned lime green and surrounded by mu lti

- colored writing. Here are the original and the revision:No. 13

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A magistrate judge, serving by consent under 28 U.S.C. §636(c), granted summary judgment for the defendants, holding that Sconn ie 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 Cop yright Act sets out four non

- exclusive factors for a court to consider. 17 U.S.C. §107. The district court and the part ies have debated whether the t

- shi rts 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

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Inc ., 510 U .S. 569, 579 (1994). Th e 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 a n 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 e xclusively whether something is “transformative” not only replac es the list in §107 but also could override 17 U.S.C. §106(2), which protects derivative works . To s ay that a new use transforms the work is precisely to say that it is deriv ative and thus, one might suppose, protected under §106(2). Cariou and its predece ssors in the Second Circuit do not e xplain ho w 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 (marke t effect). We have asked whether the contested use is a complement to the protected work (allowed) rather than a substitute for it (pr ohibited). See Ty, Inc. v. Publications International Ltd. , 292 F.3d 512 (7th Cir. 2002); Chicago Board of Education v. Su bstance, Inc ., 354 F.3d 624 (7th Cir. 2003). A t

- shirt or tank top is no substitute fo r the original photograph . Nor doe s Kienitz say that defendants disrupted a plan to license this work for a pparel . 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

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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 b e considered shall inc lude

— (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educ ational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion us ed in rel ation to the copy righted work as a whole; and (4) the effect of the use upon the potential market for or va lue of the copyrighted work.
Other than factor (4), which we have discussed already , only (3)

— the amount taken in relation to the copyrighte d work as a whole

— has much bite in this litigation. Defendants r emoved so much of the original that, as with the Cheshire Cat, only the smile remains. Defendants started with a low

resolution v ersion posted on the City’s web site, 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 exti nguished. What is left , besides a hint of Soglin’s smile, is the
out line of his face, which can’t be copyrighted. Defendants could have achieved the same effect by starting with a sna pshot taken on the street.
The other statu tory factors don’t do much in this case

. Consider (1), for example. Defendants sold their products in the hope of profit, an d made a small one , but they chose the design as a form of political commentary. Factor (2) is uni lluminating, and as we have mentio ned Kienitz does not a r-6 No. 13

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gue that defendants’ acts have reduced the value of this ph otograph, which he licensed to Soglin at no royalty and which is posted on a public website for viewing and download ing without cost. Two thing s can be said for Kienitz. Firs t, defendants did not need to use the copyrighted work. They wanted to mock the Mayor, not to comment on Kienitz’s skills as a photogr apher 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 non

copyrighted alternatives (including snapshots they could have taken themselves) were available. The fair

- use privilege under §107 is not designed to pro tect lazy appropriators. Its goal instead is to facilitate a class of use s that would not be possible if users always had to negotiate with copyright proprietors. (Many copyright owners would block all par odies, for example, and the administrative costs of finding and obtaining consent from copyright holders would fru strate many academic uses.) Second, this use may injure Kienitz’s long

- range co mmercial opportunities, even though it does not reduce the value he derive s from this particular picture. He promises his subjects that the photos will be licensed only for dign ified 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 no t present an argument along these lines, and the co nsideration in the preceding paragraph is not enough to offset the fact that , by the time defendants were done , almost noneNo. 13

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of the copyrighted work remained. The dis trict court thu s reached the right concl usion.
A FFIRMED