Copyright Law and Madison’s Mifflin Street Block Party

On September 15, 2014, the United States District Court for the Western District of Wisconsin handed down a decision in a copyright infringement case involving t-shirts created by supporters of Madison’s Mifflin Street Block Party.

The annual Mifflin Street Block Party has been a tradition in Madison since 1968, when the first gathering was held to protest the Vietnam War. Over the years, the party has grown to feature live music, house parties, public intoxication, and on occasion, police conflicts and riots. The 2002 event attracted approximately 20,000 people. Over the years, Madison city officials and the police department have tried a variety of strategies to maintain order, and in 2013, announced a cancellation of the event, only to retract the cancellation three days later.

Ironically, the current Mayor of Madison, Paul Soglin, attended and was arrested at the inaugural event. In response to attempts from the city to control the scope of the event, Sconnie Nation, a Madison-based company known for creating t-shirts and accessories celebrating Wisconsin, created a shirt featuring a picture of the Mayor with the words “Sorry for Partying” screen-printed on the front. Sconnie Nation obtained the photo of the Mayor used to create the screen-print by downloading it from the city’s website. Subsequently, the photographer, Michael Kienitz, sued Sconnie Nation for copyright infringement. He lost.

Judge Frank Easterbrook’s opinion analyzed the case under a statutory four-factor test, one of which being the effect of the borrowed image on the market for the original. Easterbrook noted that the screen-printed image on the shirt is “no substitute for the original,” and that the defendants’ products did not decrease demand for the original work.  He also cited the amount and substantiality of the portion used by Sconnie Nation in relation to the copyrighted work as a whole. Because the defendants had started with a low-resolution image from a website, removed the background, and changed the colors and shading through a technique known as posterization; what was left “besides a hint of Soglin’s smile, is the outline of his face, which can’t be copyrighted.”

While original works of authorship fixed in tangible mediums of expression can be protected through copyright law, the scope of such protection may be limited with what the law considers “fair use.”  In this case, Sconnie Nation prevailed because its use of the Mayor’s image was deemed to be “fair use.”