Photographer Wins $2,501 for Infringement in Anti-Gay Attack Ad Case
Photographer Kristina Hill has won a $2,501 judgment for copyright infringement against Public Advocate of the United States, ending a federal case in Colorado over unauthorized political attack ads. The judgment was entered June 4 in the US District Court in Denver.
Hill and her wedding photography clients, Brian Edwards and Thomas Privitere, sued Public Advocate of the United States in 2012 for unauthorized use of an engagement photo of Edwards and Privitere in political mailers produced in 2011 to defeat two Colorado lawmakers who supported same-sex marriage.
The mailers show images of Edwards and Privitere kissing each other. They were created from an engagement photo of the couple that the defendants found online and used without permission.
Hill alleged copyright infringement for unauthorized use of her photograph. Edwards and Priviter claimed misappropriation of their likeness for commercial purposes, in violation of their privacy and state right-of-publicity laws.
The court dismissed the couple’s misappropriation claim in March on the grounds that the ads were primarily non-commercial, and because they related to a matter of public concern. Therefore, free speech rights under the First Amendment shielded the defendants from the couple’s claim, the court said.
But the judge rejected Public Advocate’s motion to dismiss Hill’s copyright infringement claims on fair use grounds, because the ads didn’t pass the legal tests for fair use.
According to court papers, Public Advocate finally agreed to accept a declaration from the court that it had infringed Hill’s copyright, “without any finding or admission that such infringement was ‘willful’” under federal copyright statutes.
Public Advocate agreed to pay Hill $2,501 to cover costs related to her claim. The judgment agreement notes that Hill was not entitled to attorneys’ fees because she didn’t register her copyright in the disputed image before the infringement.
For the same reason, she was not entitled to statutory damages, but was limited to actual damages, which tend to be much lower than statutory damages.
Hill was not immediately available for comment.