Enlarge / An image from the RNC flyer. We're quite sure that our use of this image is fair, since we're engaging in comment and criticism about this photo and its role in the lawsuit. (credit: RNC / Erika Peterman)
When Erika Peterman saw photographs she had taken in a flyer put out by the Republican National Committee, she wasn't happy about it. Peterman was a supporter of Rob Quist, the Democratic candidate for Montana's at-large seat in Congress in the 2017 special election. The Montana Democratic Party had hired Peterman to take photographs of Quist at a Democratic Party event. The photographs showed Quist wearing a cowboy hat and holding a guitar.
The RNC had downloaded three of the photos from Quist's campaign Facebook page and used them in a campaign mailer attacking Quist. Peterman sued the Republican Party, arguing that the mailer infringed her copyright. But in a February ruling, a federal judge rejected Peterman's arguments, ruling that the Republicans' use of her image was fair use.
"The mailer uses Quist's musicianship to criticize his candidacy, subverting the purpose and function" of Peterman's original photographs, Judge Dana Christensen wrote. Her ruling noted that Peterman had charged the Montana Democrats a flat $500 to cover the event and had published the photographs on social media, suggesting that she had no expectation of making further money from them.
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