The U.S. Supreme Court declined last week to hear former U.S. Representative Steve King’s appeal in a case stemming from his Congressional campaign’s unauthorized use of the popular “Success Kid” meme in 2020.
SHORT-LIVED POST LED TO LONG LEGAL BATTLE
Laney Griner took the photo of her son Sam on a beach in 2007 and registered the copyright for the “Success Kid” meme in 2012. While numerous people have used the image to create memes without compensating the Griners, various corporations have paid to license the photo for use in advertising.
A January 2020 post on the King for Congress Facebook page put Sam’s defiant image in front of the U.S. Capitol with the message “FUND OUR MEMES!!!” The post linked to a fundraising page.
King’s campaign took the “Success Kid” Facebook post down within hours after receiving a warning from Griner’s attorney. Griner told the New York Times at the time, “Steve King is just the worst of the worst,” and “bigotry is just the antithesis of what we want to be the association with this meme.”
After receiving no compensation for the photo’s use, Griner filed a copyright infringement lawsuit in December 2020. According to King’s petition to the U.S. Supreme Court, the campaign raised $30 from the Facebook post, but Griner demanded $50,000 to settle the case.
Before the case went to trial, King for Congress offered $15,000 to settle. Griner declined. A jury rejected the claims that King or his campaign committee had invaded Sam Griner’s privacy. They also found the politician was not personally liable for the copyright infringement, but the campaign committee had done so. They awarded $750 in damages, which was the minimum allowed by law.
King told Bleeding Heartland in a January 24 email that he had “no knowledge of using it, neither did my campaign staff. It was posted by a third party vendor in South Carolina who managed my campaign Facebook page.”
BATTLE CONTINUED OVER ATTORNEY’S FEES
After trial, both sides sought to recover attorney’s fees, which the U.S. District Court in Iowa’s Northern District did not award to either party. King’s campaign took the case to the Eighth Circuit Court of Appeals, citing two defenses against the copyright infringement claim and several other legal arguments. The appeal asserted that a federal rule of civil procedure known as Rule 68 entitled defendants to attorney’s fees.
A three-judge panel on the Eighth Circuit ruled in June 2024 that King could not argue on appeal that it had “an implied license to use the Success Kid template,” because his attorneys had conceded that issue at trial.
The court also found that the trial jury “properly concluded that the Committee did not make fair use of the Success Kid template,” because the campaign’s “use was purely commercial.” (The Facebook post asked viewers to “please click the link below and throw us a few dollars to make sure the memes keep flowing and the Lefties stay triggered.”) The appeals court noted that the campaign “sought to exploit the copyrighted material, for financial gain, without paying the customary price.”
Under Rule 68, if one party declines a pre-trial settlement offer and later receives a judgment smaller than that amount, the side that rejected the settlement “must pay the costs incurred after the offer was made.” King argued on appeal that attorney’s fees are part of those costs. But the Eighth Circuit held that the campaign “cannot recover attorney’s fees because it is not a prevailing party. Under the Copyright Act, only prevailing parties may be awarded a reasonable attorney’s fee.”
AN UNSUCCESSFUL PITCH TO SCOTUS
In its petition to the U.S. Supreme Court, King for Congress sought to revive the claim it had an implied license to use the Success Kid meme. But most of its court filing focused on the Rule 68 argument. The petition asserted that Griner had used “lawfare” to drain King’s “energy, time, and resources,” and “never had a case for damages in excess of $5,000.00 based on past licensing histories.” It said appeals courts had split over whether attorney fees can be awarded as costs to a non-prevailing party.
The brief on behalf of the Griners noted that King had offered no payment or settlement until October 2022, nearly two years after Griner filed suit, and after King had failed to win the case on summary judgment (with no jury trial). It said the Griners had “multiple licenses” for the Success Kid photo at $15,000.
In addition, the brief depicted the case as “a poor vehicle to address a shallow circuit split on a question of limited importance.” Most federal appeals courts that have considered the issue have agreed that a non-prevailing party can’t recover attorney’s fees. “Only the Eleventh Circuit has reached the opposite conclusion in a 27-year-old holding that has been heavily criticized and rarely followed.”
The U.S. Supreme Court declines most petitions for review and (as in this case) does not typically explain its reasons.
Stephen Doniger, who represented Griner throughout this litigation, told Bleeding Heartland in a January 22 email,
Ultimately all my client wanted was to control the commercial use of her photograph of her son. Vitamin Water, Virgin Mobile, Microsoft, Coca Cola, and others knew they needed a license to use it commercially, but King for Congress refused to offer anything for their clear infringement until two years into litigation, delusionally insisting that they were the victim of a political hit job.
Doniger added, “We were shocked that they appealed to the Eighth Circuit and then the Supreme Court after the jury’s slap on the wrist verdict. We were not surprised that neither court found any merit in their arguments on appeal.”
KING VOWS TO KEEP FIGHTING “LAWFARE”
In comments provided via email, King described the Supreme Court’s decision not to hear his appeal as “disappointing.” He faulted the media for failing to cover the case adequately, “not because of bias usually associated with me, but more likely because the case unearthed issues that are rarely brought before the courts.”
King summarized Rule 68 as “a long way of saying loser pays if they are not willing to accept an offer that turns out to be greater than the court decision.” He added,
The way in which we won the case allowed us to potentially recover our attorneys’ fees from the Plaintiffs. Our litigation team found a silver bullet for lawfare, but the trial court refused to implement Rule 68, under the opinion that it could not do so.
This is a shame because the solution to lawfare may not be passing new laws, but rather utilizing relatively unused rules already in existence.
In summary, the picture at issue had been used billions of times. I was targeted by Leftist copyright trolls who through the use of lawfare sought to drain me of my life savings, time and credibility. I will always wonder if the jury award would have been $1.00 if the law would have allowed it.
I asked King whether he would do anything differently if he could go back in time. Shouldn’t his campaign committee have paid to license the photo, like other entities that paid for commercial uses? He replied,
What would I do differently? I would have made the Rule 68 settlement offer at the beginning. Then I would have made sure the judge recognized the rule. I would have made sure the press knew, too. I would have also made Rule 68 arguments to the jury in front of the judge. It would have made it much harder to reject Rule 68.
Although the Supreme Court has closed the book on this case, King wanted to “let it be known that I refuse to pay lawfare extortion and as a target, I will not back down.”
He also promised not to comply with what he called “Bruce Rastetter’s cease and desist letter that threatens to sue me for speaking the truth.” King was among at least six Iowans who received letters last fall from Summit Carbon Solutions, the company seeking to build a CO2 pipeline in Iowa and four other states. The letters demanded that recipients (all outspoken critics of the pipeline project) “refrain from making false and defamatory statements about Summit Carbon Solutions.”