FOR RELEASE: Feb. 3, 2015

Contact: Richard T. Kaplar
The Media Institute

Arlington, Va., Feb. 3, 2015 – The Media Institute has filed a friend-of-the-court brief with the U.S. Supreme Court, asking the Court to grant a petition to review an errant expansion of the fair use doctrine that is gaining traction among lower courts and eroding the rights of photographers.

The Institute filed a brief in Kienitz v. Sconnie Nation LLC, a case in which photographer Michael Kienitz charged that the company Sconnie Nation misappropriated his copyrighted photo of the mayor of Madison, Wis., and then printed a modified version of the image on shirts offered for sale.

Last September, the U.S. Court of Appeals for the Seventh Circuit upheld a district court and ruled that Sconnie Nation’s appropriation of the photo was a fair use.

The Institute’s brief argues that this case would give the Supreme Court an opportunity to strengthen copyright protections by: (1) Reaffirming the fundamental distinction between parody and satire.  (2) Maintaining the Copyright Act’s protection of derivative works by curbing expansion of the fair use doctrine.  (3) Limiting fair use to keep “lazy appropriators” from exploiting existing copyrighted photographs.  (4) Establishing a preference for statutory remedies that preserve underlying rights rather than the blunt instrument of fair use.

The brief notes that lower courts have fueled a recent expansion of the fair use doctrine through errant precedents that not only create circuit splits but more importantly harm copyright holders.

“More significant than the divisions among lower courts in their articulation of formal doctrine, however, are the pernicious consequences these emerging lines of errant precedent visit upon the rights of copyright holders, especially photographers,” the brief states.

The Institute’s brief was written by Prof. Rodney A. Smolla, visiting professor of law at the University of Georgia Law School.  Prof. Smolla is a legal and constitutional scholar who serves on The Media Institute’s Intellectual Property Advisory Council, as well as the Institute’s First Amendment Advisory Council.

The brief can be viewed here on The Media Institute’s website at

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