Josh Hawley, Intellectual Property Pirate?

How Missouri's junior Senator may end up writing a BIG check to the MSM.

Last year, before the January 6th insurrection became violent, a Politico photographer captured Missouri’s junior Senator, Josh Hawley, offering those gathered around the Capitol Building a defiant raised fist in support of their mission to disrupt the certification of the state electors that day in hopes that Vice President Pence might delay or overturn a legal Presidential election. Hawley himself had attempted to delay those proceedings by objecting to counting the Arizona electors (effectively attempting to disenfranchise another state’s voters) before his infamous fist pump, and after order had been restored (and Ashley Babbitt had been killed as part of a mob rushing a police officer defending the building), Hawley then supported disenfranchising Pennsylvania voters before the joint session conclusively closed the matter by declaring Joseph Biden the new President of the United States of America.

I’ll leave it to the historians (and conspiracy theorists) to produce their full accounts of what went down that day, but Hawley’s fist bump returned this year when the Senator began selling campaign merchandise featuring the image under the slogan “Show-Me Strong”, an homage to Missouri’s “Show Me State” nickname. It seemed that the notorious Senator chose to use the one image that best captures his notoriety to raise funds from pro-insurrection campaign donors while making the weak excuse that he doesn’t support the sedition that happened on that day. I’ll also leave it to the political marketers, campaign professionals, and voters to decide whether doubling down on his attempted disenfranchisement is a wise move, but I did want to dig into the question of whether the Missouri Senator became an Intellectual Property Pirate in the process. Politico demanded that Hawley stop selling swag with that image, and the Senator has refused to back down. And this is something that I have some recent direct experience dealing with.

Late last year, while I was in the middle of preparing my business for the holidays and assembling plans for my Thanksgiving gathering, I received a physical letter (postmarked in Kansas) from a Canadian firm called PicRights demanding that I pay them a large sum for an image that I used on my company’s weblog (not updated in years) that one of their clients owned and had empowered PicRights to seek a monetary settlement in lieu of dragging me into court for copyright infringement. I was informed that merely taking down the offending image was not a sufficient redress to the harm I had allegedly caused and payment would be required to set things right. PicRights is one of several companies that exist, having found a sustainable business model using automated web spiders to crawl the web, to look at the images web publishers are using, then fire off automated demand letters to potential offenders. Many of these companies started as smaller firms building technology to enforce copyrights on behalf of solo photographers, but having created an automated platform to produce demand letters, it was a tiny step for them to leverage their technology on behalf of larger firms such as the Associated Press, Reuters, and Agence France-Presse. In the case of the Hawley image, it falls under AP Images’ ownership.

I came to PicRights’ attention when I used a photo of another company’s consumer product on a article discussing digital nutrition labels, posted in 2016 in the context of some of the software and platforms I was building. Unfortunately, PicRights’ automated crawlers made a mistake by targeting me, as I’m one of the few people who actively enjoys researching and applying copyright law.

Back at the beginning of my career, I was successful in convincing the Oyez Project to adopt the new Creative Commons copy-left licenses to release their Supreme Court audio oral archive as MP3s in an emerging media form called “podcasting”, and I followed that up with a brief stint in graduate school, where I spent some time untangling the true status of the copyrights of the early 20th-century weird fiction pioneer, H.P. Lovecraft. These days, I run a largely open-source business focused on clients in the healthcare and research space. My own business is as dependent on copyright protections as PicRights’ clients.

When I received the PicRights letter, against (probably) better advice, being the stubborn person I am, I decided to contest it every step along the way, and ultimately ended up negotiating the requested settlement down far enough that AP Images and PicRights probably lost money dealing with my case, and I ended up purchasing something wonderful and priceless in the process - which unfortunately I am unable to disclose due to the settlement agreement. (A hint to the copyright holders out there: be sure you don’t put anyone other than your best lawyers and executives to the task of drafting your robo-settlement agreements.)

Getting back to Hawley’s case, I’d expect that PicRights is also in contact with his campaign on the issue of the “Show-Me Strong” mugs and apparel. PicRights is the firm that the Associated Press empowered to serve as its first line of copyright defense (the AP itself is actively uninterested in having that process occur in-house) and the original image in question may be licensed from them for editorial use for $95 for two years if, for example, The Racket News decided that they wanted to run that image with this post. An editorial license, which the Hawley campaign claims to have purchased, is limited to editorial contexts, which limits the image for use in illustrating something else and the image is not the primary content being provided.

Now, if I tried to license that image for use on apparel (as Hawley’s doing), that $95 license jumps up to $995 for usage for two years and up to 25,000 items. That price goes up and down as you change the licensing parameters (duration of use, number of units produced), and it’s possible for AP Images to decline to license the image at all in this context (as it’s currently doing). 

Hawley’s campaign is now stating that its use of the image is “fair use”, a really poor defense to cite in this context. I won’t go into the thickets of defending a copyright claim using fair use (better explainers than me have done better jobs) and even if Hawley’s use was a fair use (it isn’t), that defense is neutered immediately by his campaign first licensing the image for editorial use, then pivoting to using it to create and sell physical products. The fact that the Hawley campaign saw fit to license the image for use where a fair use defense is strongest undercuts their defense of unlicensed use in a product and advertising context.

Given my own experience, PicRights and AP Images are likely demanding many multiples of the $995 quoted above to settle the copyright infringement. (His campaign also presents a rich settlement opportunity, so the multiplier being demanded from him likely exceeds the original multiplier demanded from me.) I don’t know how much money Josh Hawley is paying copyright specialists from his campaign funds, but for the sake of argument, let’s discuss what could happen should he decide to fight this battle to its bitter end with the small donor dollars he’s been successfully gathering.

The first thing Hawley’s lawyers need to determine is whether the photo in question is registered with the U.S. Copyright office. While the photo’s owner enjoys copyright protection the moment the photo was taken, this matters for damages should the case make it to court. If the photo was not registered at the time Hawley started selling his mugs, AP Images would be able to sue for real damages, which is the amount of money that they would have made had Hawley licensed the image properly. That would be somewhere around $995 for use on the apparel items. However, if AP Images did register the copyright to those images, then Hawley is dealing with statutory damages, which are set by law and allow the copyright holder to skip the whole process of determining real damages for a larger default amount.

In the case of copyrights, statutory damages run from $750 to $30,000 per infringement, which makes each and every Show-Me Strong mug and shirt sold a massive loss for Hawley’s campaign. I cannot currently determine if the image in question was registered with the U.S. Copyright Office–common sense and the image’s notoriety should make it a priority for registration–but as mentioned before, copyright holders don’t have their brightest people working on these parts of their business.

I expect this reaction from the campaign’s lawyers if they discover the photo was previously registered with the copyright office (warning - language is NSFW):

For the sake of discussion, let’s assume that the image copyright was not registered, because if the image was registered, PicRights and AP Images effectively own the Hawley campaign for its infringements and can ask whatever they want, as a court outcome will not likely turn out in the Missouri Senator’s favor. AP Images could also ask for additional damages (up to $150,000 per infringement) as they can show that the unlicensed usage is willful and ongoing, which Hawley not backing down and claiming a fair use defense helps establish.

So, if Hawley does not have a license to use an unregistered image, what happens next? At this point, the two parties decide whether an amicable settlement can be negotiated or the case goes to court. If we assume Hawley has (rightly) fired the lawyers who told him to mount a fair use defense, and replaced them with competent counsel, those lawyers will offer up what is called a Rule 68 settlement offer.

Rule 68 originates from the Federal Rules of Civil Procedure and basically states that if a defendant makes a settlement offer before the case goes to court AND the plaintiff is victorious BUT receives a judgment from the court less than the original Rule 68 offer from the defendant, THEN the plaintiff is responsible for paying court costs, as it wasted the court’s time getting to a judgment that was worse for them had they settled at the beginning. This is intended to encourage settlements instead of trials and to serve as a mechanism to help prevent a well-lawyered plaintiff with a weak case from bleeding the defendant dry through court and legal costs. Note that Rule 68 is not a “get out of jail free” card with respect to copyright infringements–we currently have a circuit split on how it should be applied in different federal circuits. In some circuits, a defendant may be able to recover attorney fees, in others, only court costs. The federal circuit that would ultimately try Hawley’s case matters significantly.

Digging into the mechanics of all this, since we are still in the realm of actual damages because the image was (hypothetically) not registered with the U.S. Copyright Office, Hawley’s lawyers have a chance of offering up a Rule 68 settlement more along the lines of the $995 fees quoted above, as that would have been what the AP would have been paid had his campaign also received the proper product and advertising licenses. However, this is also contingent upon whether AP Images would have licensed the image for that use in the first case, as the image page also states, “This content is intended for editorial use only. For other uses, additional clearances may be required.” This gives the AP’s lawyers an opening to argue that the Hawley campaign would have never received the $995 pricing quoted on the page or that they would have required a per-item royalty, and the actual damages are much higher. If the AP seeks an injunction for Hawley to stop selling the infringing material and to recall the unauthorized items (have fun with the eBay scalpers selling contraband campaign swag), a ruling in the realm of actual damages may not be limited to only monetary compensation, but also additional actions that the campaign would have to take to satisfactorily redress the harm caused.

Given my own experience dealing with these parties in a similar situation, I fully expect the Hawley campaign to arrive at a quiet settlement in this case, as going to court on this matter has the potential to bleed his campaign coffers dry. (If you clicked through to Hawley’s online store above and saw the pictures on the mug, you just became an additional infringement on Hawley’s tally.) The best hope that the Hawley campaign has is if the image was unregistered so his team can argue in the realm of real damages and can pay back AP Images for the license it should have received. As someone who was recently on the receiving end of one of these copyright claims, I have no love for AP Images or its enforcer PicRights. On the other hand, I’m not a big fan of insurrectionists either, so something unexpectedly positive to come out of Hawley’s fight with my former foes is a front-row seat for me to root for injuries. I’ll be following this case with a giant bag of popcorn.

Of course, and should Hawley somehow manage to be successful with his fair use defense, I have a Photoshop file ready with an updated logo ready to slap on a whole line of “Show-Me Sedition!” merchandise because what’s good for the goose is good for the gander. To make the last laugh even more satisfying, unlike Hawley’s fair use defense, parody is actually protected under our copyright law.

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Chris Karr is a copyright expert who blogs at Notes from the Void on Substack.

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