June 23rd, 2014

Photographer Wins $2,501 for Infringement in Anti-Gay Attack Ad Case

 

©Kristina Hill

©Kristina Hill

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.

Kristina-Hill-Attack-AdHill 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.

Related:
In Fight Over Anti-Gay Ad, Misappropriation Claims Are Dismissed
Richard Prince Settles with Photographer Patrick Cariou

 

April 3rd, 2014

In Fight Over Anti-Gay Ad, Misappropriation Claims Are Dismissed

©Kristina Hill

©Kristina Hill

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.

gay-attack-adBut 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
transformative.’”

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.

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

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

September 26th, 2012

Anti-Gay Group Sued for Unauthorized Use of Photo in Attack Ads

©Kristina Hill

The Southern Poverty Law Center has sued an anti-gay group for unauthorized use of a photograph of a gay couple in political attack ads in Colorado earlier this year.

SPLC sued the Virginia-based Public Advocate for the United States (PAUS) for violating the copyrights of photographer Kristina Hill of Brooklyn, New York. The suit also alleges that PAUS unlawfully appropriated the likenesses of the couple in the photograph–Brian Edwards and Tom Privitere.

Public Advocate of the United States, which SPLC classifies as a hate group because of its anti-gay propaganda, used Hill’s photo 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.

Hill’s image of Edwards and Privitere, shot during an engagement session, shows them kissing with a New York skyline in the background. Edwards ended up posting the image on his blog, with Hill’s permission.

PAUS downloaded the image, stripped out the background, and replaced it with backgrounds of two different Colorado landscapes for the unauthorized campaign mailers. PAUS superimposed text that read “State Senator Jean White’s idea of ‘family values?’” in one mailer and “Jeffrey Hare’s Vision for Weld County?” in the other ad.

White was defeated in her re-election race.

“I cringe every time I look at what once was one of our favorite photos,” Edwards said in a press release issued by SPLC when it filed the lawsuit today. “All I see now is the defiled image used to attack our family and our community. All we want is justice for the pain that Public Advocate has caused us. ”

An SPLC attorney said in the press release: “This was just a cheap way for Public Advocate to avoid having to pay for a stock photo to use in their hateful anti-gay attack ad. It was nothing short of theft.”

Hill, Edwards and Privitere are seeking an unspecified amount of damages.

Related stories:
Civil Rights Group Demands End to Use of Same-Sex Couple Photo in Anti-Gay Ad
Wedding Photographer Might Sue for Infringement Over Anti-Gay Attack Ad