In a win for online fair use and the free speech it makes possible, a federal district court judge has ruled that using a campaign headshot as part of a critical, noncommercial blog post does not infringe copyright.

The case started back in April, when California Republican Party Vice Chairman Harmeet K. Dhillon sued an anonymous blogger over the use of a five year old headshot on "The Munger Games" website—a site dedicated to criticism of Charles Munger Jr., donor and current chairman of the Santa Clara County Republican Party, and his perceived political allies. The headshot was part of a post criticizing Dhillon and was originally used as part of her failed campaign for the California Assembly in 2008. Given that the use in question was obviously a lawful fair use, it appeared that the suit was motivated more by a desire to use the judicial process to unmask her critics than by any legitimate copyright concern. 

The defendants asked the court to dismiss the case as a matter of law early, before the parties were forced to waste further time and money defending the case. EFF submitted an amicus brief in support, explaining that it is particularly important to call a halt to such cases quickly, lest they be used as a club to punish free speech. While some fair uses cases can be muddy, the right outcome for this one was crystal clear.

Happily, the court agreed, though it did not use quite the procedure we urged. Running through the traditional fair use factors (purpose, nature of the work, amount used, and likelihood of market harm), the court noted that while the headshot was originally created for use in a campaign, the bloggers had used it as part of their criticism of Dhillon's political views—a "paradigmatic" fair use purpose. The court rejected out of hand as a "speculative assertion" Dhillon's contention that the bloggers might have had some commercial purpose. While the work was minimally creative and the bloggers used the entire work, they had to do so to accomplish their purpose. Finally, the court concluded that the Munger Games use of the shot had no impact on any licensing market for the work. The court properly rejected Dhillon's complaint that she had stopped using the photo herself due to the negative publicity:

The plaintiff’s argument that the defendant’s use of the headshot photo in connection with the article commenting on and criticizing her political views has altered the meaning or message of the original work is, in effect, a concession that the defendant’s use was transformative under the first factor of the fair use analysis. The plaintiff’s argument does not, however, establish that the defendant’s use had any impact upon the economic market for the headshot photo . . . .  

The plaintiff in this case should have known better than to waste the court’s time on such an outrageous claim. We're glad to see that Judge Illston took the wise step of dismissing the case now. But it's disappointing that she did not also choose to punish Dhillon for her misuse of the judicial process by requiring Dhillon to pay attorneys fees. Indeed, the case underscores the need for a strong federal anti-SLAPP law. It is likely no accident that Dhillon countered the criticism of her political views with a (federal) copyright infringement suit. Had she brought a similar state-law claim and lost, California's anti-SLAPP statute would likely have left her on the hook for attorney's fees. As long as federal causes of action are exempt from anti-SLAPP protections, plaintiffs will continue to be drawn to such strategies to carry out their transparently improper goals.

In the meantime, as the 2014 campaign season ramps up, let's hope our politicians take note: the best response to critical speech is still more speech, not bogus copyright claims.