News Org Demands Josh Hawley Stop Using Raised Fist Photo On His Campaign Merch

from the hawley-shit dept

We recently discussed noted fascist and fist-raiser Josh Hawley and his campaign’s decision to start selling campaign merchandise using a photo from a Politico photographer. As part of that post, we talked about how the Associated Press was looking into whether this constituted copyright infringement. I very much think it does not, given that the use is for political donations (speech), that it is at least mildly transformative, and there is zero harm done to the news organizations due to its use. On the other hand, I also very much expected a conflict over all of this.

And now here we are, with E&E News, which is owned by Politico, stating that the use of the image was unauthorized and demanding that Hawley stop using it.

“The photo was taken by E&E News photographer Francis Chung. We did not authorize its use by the Hawley campaign for the purpose of political fundraising, which the campaign has been put on notice of by legal counsel,” Politico spokesman Brad Dayspring said in an email. “We eagerly await a response, but in the interim again respectfully ask that the campaign immediately cease and desist unauthorized use of the image,” Dayspring said.

Now the open question is whether Politico is willing to actually move forward with a lawsuit against a sitting Senator over this. Why? Well, based on the campaign’s public response, it doesn’t appear that Hawley’s team has any intention of ceasing and/or desisting.

But, because we live in the dumbest timeline as the kids say, those public comments from Hawley’s team are also dickish in the most on-brand way and more than a little stupid.

“We haven’t received any correspondence from Politico or anyone else, but we are in full compliance with the law,” Hawley campaign spokesman Kyle Plotkin told HuffPost. “Perhaps Politico can show us the correspondence they sent to the many liberal groups who also used the photo.”

You can really feel Plotkin thinking he’s made an actual point here, but he hasn’t. I’ll just let Gizmodo’s Dell Cameron field that one.

Nope, it very much is not. But keep your eyes out for a future lawsuit in which there will be no good guys to root for. My favorite kind.

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Companies: e&e news, politico

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Comments on “News Org Demands Josh Hawley Stop Using Raised Fist Photo On His Campaign Merch”

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Koby (profile) says:

No Harm No Foul

If a copyright holder is attempting to sue for damages, they might have to prove that they suffered financial loss, i.e.- they intended to charge others money for its use. If other organizations were also openly using it, with no license, and were neither charged money nor asked to cease and desist, then the defense may have a strong case that no financial loss was incurred.

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That One Guy (profile) says:

If the goal was to leave him worse off...

Insurrectionist Hawley meanwhile is likely laughing his ass off thanks to E&E News/Politico falling into a trap so obvious it might as well have neon signs spelling out ‘THIS IS A TRAP’ surrounding it.

He couldn’t have paid for the amount of attention and resulting funds from his foolish-at-best supporters this will get him and yet they are giving it to him for free, so well done.

This comment has been deemed insightful by the community.
paulalanlevy (profile) says:

This IS the way copyright law works

This controversy is reminiscent of the lawsuit by AP against Shepherd Fairey over his employment of an AP photo for his Obama “hope” poster. The fair use issue was close because Fairey was an artist. Fairey settled on the eve of trial, and he settled because he knew he might well lose.

I think the Hawley campaign is going to be hard pressed to defend its mug as “art.”

As for the fact that this involves a campaign, that does not give them a free pass. That is especially so because, as I read the facts, the Hawley campaign is selling mugs with this image for $20. It is going to be hard pressed to argue that this is a non-commercial use.

Finally, actual damages includes not only lost license fee but the infringer’s profits. Nobody is buying these mugs because they have a nice shape. It is the copyrighted content that sells these mugs. So you could see a substantial actual damages claim that could well be worth more than statutory damages, depending on how many mugs are sold

Anonymous Coward says:

Re: Re:

Logically, the extent that this matters could be proven by comparing sales of this mug to sales of an identical, yet entirely blank, mug in the same marketplace.

But legally, that’s not necessary, because it doesn’t matter. This is the entire purpose of licensing agreements.

Just because the South Lilliputian Entourage of Angry Zebra Enjoyers has a larger and more invested audience than I do, does not mean they are allowed to sell shirts with my angry zebra design unless they obtain my permission first.

After all, if they could, how would I be able to make deals with any other organizations? Maybe I approach the Lilliputian Embassy for Generally Amicable Llamas. Why would they bother to pay me for my work if they know they can just take whatever they want, since they are more popular than I am?

Even if I never attempt to use the disputed designs for commercial gain, they’re still protected. It’s my copyright, not a trademark. It’s not limited to the scope of my existing endeavours.

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