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

April 3rd, 2013

Gun Rights Advocate Charged in Copyright Case Over Anti-Gay Attack Ads

©Kristina Hill

©Kristina Hill

A New York wedding photographer and a New Jersey gay couple who are jointly suing an anti-gay group for unauthorized use of an engagement photo (shown at right) are now going after a Colorado gun rights advocate, too.

The Denver Post reports that attorneys for the gay couple, Brian Edwards and Thomas Privitere, have filed papers in a Colorado federal court to add Dudley Brown and two gun groups–Rocky Mountain Gun Owners and the National Association for Gun Rights–to their lawsuit.

Edwards and Privitere, along with photographer Kristina Hill, sued a Virginia-based group called Public Advocate of the United States (PAUS) last year for unauthorized use of Hill’s engagement photo of the couple in political attack ads (shown below). The ads, distributed as campaign mailers in Colorado, were part of an effort to unseat candidates who had supported a push for same-sex unions in the state.

During the discovery process in the case against PAUS, the plaintiffs learned from e-mail records that Dudley Brown was behind the mailers, and that he worked with PAUS to distribute them, according to the Denver Post report. Brown is founder and executive director of Rocky Mountain Gun Owners, and executive VP of the National Association for Gun Rights. He allegedly used e-mail accounts associated with both organizations to correspond with PAUS about the campaign mailers.

gay-attack-adThe Denver Post report quotes one e-mail in which Dudley told PAUS: “What I propose is that [PAUS] pay for mailing. … My staff and I would do all the work, but we’d want [PAUS] to sign off, put its name on the dotted line, and pay for the mailings. I would counsel mailing slick and glossies, with the ‘two men kissing’ photo.”

The plaintiffs are charging infringement of Hill’s copyright and unlawful appropriation of the likenesses of Edwards and Privitere.

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

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