November 12th, 2012

Anti-Gay Group Pleads Fair Use, Free Speech in Infringement Case

An anti-gay group sued for using a photograph of a gay couple without permission in political attack ads has asked the court to dismiss the case on fair use and free speech grounds, according to a report by The Washington Post.

Public Advocate of the United States (PAUS) was sued in federal court in September by the Southern Poverty Law Center on behalf of Brian Edwards and Tom Privitere, as well as photographer Kristina Hill. The lawsuit charged PAUS of misappropriation of the likenesses of Edwards and Privitere, a gay couple, in two attack ads distributed in Colorado. The lawsuit also charged infringement of Hill’s copyrights.

Motions to dismiss civil claims are a common legal defense strategy of first resort, and are usually unsuccessful unless the facts of a case are undisputed.

Hill, a Brooklyn-based wedding photographer, had shot engagement photos of the couple. Edwards ended up posting one of the images on his blog, with Hill’s permission. PAUS downloaded the photo, and used it last spring in campaign ads against Colorado state senator Jean White (who had voted in favor of allowing same-sex unions in Colorado) and against Jeffrey Hare, a candidate for the Colorado house of representatives. The ads were distributed as mailers.

According to the Washington Post report, PAUS said that its use of the photograph is protected speech, because the organization was expressing its political views about gay marriage. PAUS also said that the gay couple depicted in the photograph had no reasonable expectation of privacy, because they had posted the image online where anyone could see it.

In its defense against the copyright infringement claim, PAUS argued that its use of the photo was protected by fair use because it “thoroughly transformed” Hill’s photograph by changing the background before publishing it in the political mailers. Hill had photographed the couple against a New York skyline. The PAUS ads replaced that skyline with two different Colorado landscapes.

Related:
Anti-GAy Group Sued for Unauthorized Use of Photo in Attack Ads

June 29th, 2012

Wedding Photog Might Sue for Copyright Infringement Over Anti-Gay Attack Ad

Wedding photographer Kristina Hill says she’s contemplating legal action for copyright infringement against a Virginia-based group that has ripped off one of her images of a same-sex couple, and used it to create a political attack ad.

The group, called Public Advocate of the United States, used an engagement photo of Hill’s showing her clients kissing. The group used the image in a political ad attacking Colorado State Senator Jean White, who has voted in favor of allowing civil unions in Colorado.

Public Advocate, which is designated a “hate group” by the Southern Poverty Law Center.  cropped Hill’s image, stripped away the background of the New York skyline, and replaced it with a background of a Colorado landscape in winter. The group also superimposed text that read: “State Senator Jean White’s idea of ‘family values?’”

©Kristina Hill

The ad was created for a conservative anti-gay opponent vying for White’s senate seat. White was defeated in that race.

One of the men in Hill’s photograph, Brian Edwards, was notified by a friend about the ad. Edwards minced no words about it on his blog called The Gay Wedding Experience: “How do I feel? I’m in shock and I’m angry and I’m hurt and I’m flabbergasted and I’m livid.”

According to The Denver Post, Edwards and his partner have hired a lawyer.

Hill also wrote about the theft on her blog. “To see an image, taken with that intent being used in the way it was used is heart-breaking for me,” she said. (Hill was a PDN Top Knots contest winner in 2010.)

In The Denver Post story about the ad, Public Advocate defended its unauthorized use of the image on the grounds that others “make fair use of our materials.” (Public Advocate’s web site says it is “fighting Liberals Tyrants Elitists Homosexuals Barack Obama pornography gay marriage same-sex marriage high taxes over-regulation.”)

In an interview with PDN, Hill said of Public Advocate’s use of her image, “It’s obviously copyright infringement, and I plan to pursue it.”

She’s just not certain she has the resources–or the stomach–for a protracted court fight. “There’s not going to be monetary gain in my lawsuit. I don’t care. I would be looking for justice. But it could drag on for years, and rack up a lot legal fees for me, and I don’t have a ton of money.”

She adds, “They’re a powerful organization that did this. I’m one tiny photographer. It’s scary. It could be a lot of tearing me apart. It could get ugly.”