A federal court in Colorado has ruled that the unauthorized use of a gay couple’s engagement photo in a political attack ad was protected by the First Amendment. But the judge in the case rejected a request by defendants to throw out the photographer’s copyright infringement claims on fair use grounds.
Photographer Kristina Hill and her wedding photography clients, Brian Edwards and Thomas Privitere, sued conservative advocacy group Public Advocate of the United States (PAUS) in 2012 for unauthorized use of an engagement photo of Edwards and Privitere in political attack ads.
The ads, showing an image by Hill of Edwards and Privitere kissing each other, were part of a PAUS campaign to defeat two Colorado lawmakers who supported same-sex marriage.
Hill sued for copyright infringement because PAUS used the photo without her permission. Edwards and Priviter claimed misappropriation of their likeness for commercial purposes, in violation of their privacy and Colorado’s right-of-publicity laws.
But the court has thrown out the couple’s misappropriation claims on the grounds that the political ads were “primarily non-commercial,” and that they “reasonably relate to a legitimate matter of public concern”–same-sex marriage. Therefore, free speech rights of the First Amendment barred the couple’s misappropriation claim, federal judge Wiley Y. Daniel wrote in the decision.
However, Judge Daniel rejected a motion by PAUS to dismiss Hill’s copyright infringement on fair use grounds, ruling that the ads didn’t pass the standard four-pronged test for fair use.
The first factor, relating to the character and purpose of the unauthorized use, went against the defendants for two reasons. Language of the copyright law protecting unauthorized use for educational purposes “suggests that the educational purposes contemplated by the statute’s drafters relates to schooling, not mailers circulated during an election,” the judge wrote.
Furthermore, he explained in his decision, “while the defendants placed the lifted portion [of the image] in a different background and placed a caption on the mailer, such actions cannot be characterized as ‘highly
Other prongs of the fair use test also went against the defendants. For instance, the image is a creative work, not merely informational, which mitigated against a fair use finding, Judge Daniel said. And he rejected the defendants’ argument that they used only used a small part of Hill’s image, countering that they used the qualitatively most significant part, which shows the subjects kissing.
“I find that the plaintiffs have stated a plausible copyright infringement claim under the Copyright Act,” the judge concluded.
The ruling allows Hill to proceed with her copyright infringement claims, and was not a final decision on those claims.
A trial date has been set for January 26, 2015.
Six journalists, including a freelance photographer and a documentary producer, are facing felony rioting charges following their arrests while covering protests during the presidential inauguration, The Guardian has reported. If convicted, the journalists face up to ten years in jail and fines of up to $25,000. Journalists arrested at the January 20 protests in Washington,... More ›
Photographer Jim Lo Scalzo says Representative Louie Gohmert covered his camera when he tried to photograph demonstrators at the Senate confirmation hearings for Jeff Sessions, the nominee for Attorney General. Lo Scalzo, a photographer with European Pressphoto Agency (EPA), was standing near the door where Capitol Police removed the protesters when “all of a sudden... More ›
Terms of service. Unless you’re a masochist or a lawyer (but I repeat myself), you’ve probably never read them. Most of us impatiently click “accept” on our way to signing up for whatever it is we want to divulge our personal information to want to use. In the case of photo-oriented services like Instagram, accepting... More ›