On June 7, 2024, an Eighth Circuit appeals court panel ruled that the U.S. Supreme Court’s 2023 decision in Andy Warhol Foundation v. Goldsmith undermined the fair use defense in a copyright lawsuit against a former Republican congressman. Steve King, an Iowa Representative, used the widely recognized “Success Kid” meme – a photo of a baby with a triumphant expression – in his unsuccessful reelection campaign. Laney Griner, the copyright holder (and the baby’s mother), sued King over the unauthorized use.
The “Success Kid” is a 2007 photo of a cute baby fist-pumping that quickly became one of the most popular memes in recent years. King used the photo in a Facebook advertisement. Judge Benton cited the Warhol case in determining that commercial use of the “Success Kid” meme required a particularly compelling justification in order for a fair use defense to prevail.
In Warhol, the Supreme Court ruled that Andy Warhol’s art depicting portraits of musician Prince, obviously utilizing Lynn Goldsmith’s copyrighted photograph, did not constitute “fair use.” The opinion, penned by Justice Sotomayor, emphasized that commercial uses are less likely to be considered “transformative” and thus less likely to be insulated by the fair use doctrine. This was an outcome advocated for by the National Society of Entertainment and Arts Lawyers (“NSEAL”), which organization (chaired by Steven T. Lowe for the past 6 years) filed an “amicus brief.”
Judge Benton noted that the advertisement was intended to solicit campaign donations without compensating Griner. Following Warhol, the panel found that the committee failed to provide a compelling, independent justification for copying the photograph.
U.S. Circuit Judges Duane Benton, Ralph R. Erickson and Jonathan A. Kobes sat on the panel for the Eighth Circuit.
Griner and her son are represented by Stephen M. Doniger and Michael D. Steger of Doniger Burroughs.
King and his campaign committee are represented by M. Keith Blankenship of Da Vinci’s Notebook LLC.
The case is Griner et al. v. King et al., case number 23-2117, in the U.S. Court of Appeals for the Eighth Circuit.
* Lowe & Associates (“The Firm”) is a boutique entertainment and business law firm located in Beverly Hills, California. The firm has extensive experience handling cases involving copyright law, having provided top quality legal services to its clients since 1991. The Firm is recognized for its many achievements, including successfully litigating many high-profile cases.
