Josh Hawley May Be A Terrible Human Being (And Senator), But He Still Gets Fair Use Rights

Josh Hawley sucks. I disagree with him on about just about everything. And I am appalled by his support of the rioters who invaded the Capitol Building on January 6, 2021. It's disappointing and shameful that a United States Senator would endorse a riot, especially a riot intended to challenge the indisputably legitimate election of the President of the United States. But the First Amendment says Hawley is entitled to his opinion, and he's entitled to express it. And he's entitled to quote other people to make his point.

Surprisingly, some people disagree. On April 10, Mickey H. Osterreicher published an op-ed in the Kansas City Star, arguing that Hawley shouldn't and can't use an iconic photograph of himself supporting the January 6 rioters to sell campaign merchandise. I endorse the shouldn't in spades. Hawley's actions were embarrassing, and it's even more embarrassing that he's capitalizing on them. But I disagree with the can't. Hawley can absolutely use the photograph. And that's a good thing.

In a nutshell, Osterreicher's argument is that the photograph is protected by copyright, so the photographer (or copyright owner?) can dictate how it's used.

No. That is ridiculously wrong. Yes, whoever owns the copyright in the photo is entitled to control its use, in order to generate a profit. But their rights are limited by the fair use doctrine, which says that people are entitled to use copyrighted works in order to criticize them.

Josh Hawley is using a very well-known photograph of himself to criticize people who criticize him for supporting the January 6 rioters. That is precisely the kind of use the fair use doctrine was intended to protect. In fact, it is the kind of parodic use that the founding fathers used to criticize loyalists in the Federalist Papers.

Fair use ensures copyright doesn't violate the First Amendment. After all, copyright only regulates commercial speech. Why would anyone file an infringement claim, unless someone was competing with them? We all know that's wrong. People use copyright claims because they want to silence people they dislike. That's wrong. And it's crummy. Some copyright lawyers like to pretend fair use is complicated. Give me a break. Every news organization relies on fair use every time it publishes a quotation.

Is there a copyright problem here? LOL. The photographer wanted to license, but only when convenient.

Let's tell it like it is. This photographer wants to tell Senator Josh Hawley to shut up. And they want the government to tell him to shut up because they own a copyright on a photograph they took of him without his permission, and they don't want him to use it.

It's ok to think Josh Hawley sucks. But don't be a landlord about it. You made your point, he's entitled to make his.