Josh Hawley is blatantly stealing this American photographer’s work for campaign cash

Dear Sen. Josh Hawley: Just stop.

Stop merchandising a widely published photo taken before the storming of the U.S. Capitol on Jan. 6, 2021, showing you clenching your fist in support of the mob. Stop being part of a long line of celebrities and politicians who think they can misappropriate images and music created or owned by others without permission, credit or compensation. And please, stop erroneously citing copyright “fair use” as an excuse for doing it.

You are not the first and certainly will not be the last try to profit from the work of others. Neil Young sued and apparently settled with Donald Trump for copyright infringement of Young’s music during Trump campaign stops and political rallies.. In 2020, Mick Jagger was joined by Elton John and other stars in an open letter calling on all candidates to obtain permission before playing their music at political events. Even if, like Snoop Dogg, you misguidedly believe that photographers shouldn’t own their photos of celebrities, please stop using this photo.

As a graduate of Yale Law School, you are to be commended for criticizing China for stealing U.S. intellectual property, but it is galling that you feel entitled to act in ways that are extremely detrimental to those same American workers who earn their living through the licensing of such intellectual property. As a senator, you should know that in recognition of the importance of such works, the Constitution empowered Congress to enact laws to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

Title 17 of the United States Code is a large and complicated body of federal copyright law, established for just that purpose. Among other things, it protects music and photos from being infringed, but also from being used in ways that the creator of the work never intended or would authorize. “Fair use” is an affirmative legal defense against infringement claims that may be asserted only by a defendant in a copyright lawsuit.

While a judicial fair use ruling may permit a party to use a work without the copyright owner’s permission for certain purposes, those determinations can be made only by balancing four critical factors, which judges sometimes get wrong. Those cases often get appealed, occasionally finding their way to the Supreme Court after years of costly litigation.

In response to a cease-and-desist letter from attorneys for Politico, the news site asserting ownership of the photo taken by its staff photographer Francis Chung that you are using on coffee mugs and T-shirts to raise campaign funds, your attorneys flippantly stated: “The image used on the mug is a protected fair use and the Hawley campaign’s speech is further protected by the First Amendment.”

Because the commercial sale of products for political fundraising does not appear to be one of the U.S. Copyright Office’s accepted fair use purposes of “criticism, comment, news reporting, teaching, scholarship or research,” nor does the manufacture and sale of these types of products appear to be a form of “speech” protected by the First Amendment, it would be wise to desist from hawking them now.

Given the bigger issues surrounding this photo, you may see this copyright matter as a tempest in a teapot. But for those who earn a living through the proper licensing of images, it is just another example of those who seek to devalue photography and in particular the work of visual journalists who continue to risk their health, safety, and very lives (as in Ukraine today) to capture these compelling images.

So rather than being a part of the problem where those asserting fair use seek to turn copyright law on its head by the exception becoming the rule, please, Senator: Show some decency and respect for the law and quit using this photo.