Rights to Use Taliban Video Screenshot

Dear Rich: I make photo t-shirts and other photo gifts and take orders online at my website.  I have designed a t-shirt with a photo of a soldier being held captive by the Taliban with the text "Free Bowe Bergdahl" over the photo. I pulled three different photos from the net, one from the Taliban video, a photo of Bowe Bergdahl before entering the military, and the third of him in uniform. I plan to donate most of the proceeds to the American Red Cross from the sale of these shirts, but am I at risk of being sued if I use the photos? It's difficult for us to assess your claims because the grim reality of the underlying situation seems to make questions of copyright law seem trivial. As well-meaning as you may be with your t-shirt, it's difficult to understand how it would not be perceived as exploiting the situation, rather than helping it. In any case, if you're concerned about the copyright analysis, here it is.

Yes, you could be sued if the copyright owners of the two pre-capture photos find out about your use and challenge you in court (probably an unlikely scenario). You're free to do what you want with the Taliban-created image (since for obvious reasons, nobody will claim copyright to that imagery). The fact that you're donating some of the money to the American Red Cross doesn't affect the legal claims (only the amount of damages). And if you are sued, we think you would have a hard time arguing fair use since you are not using the photos in a transformative manner -- you're simply reproducing them in order to sell t-shirts.