The iconic "Raising the Flag at Ground Zero" photo of
firemen raising an American flag on September 11, 2001, which
appeared on the cover of The Record newspaper and other newspapers on
September 12, is at the heart of a lawsuit filed in Federal
District Court in New York. The Complaint, filed by the owner
of the copyright in the photograph, claims copyright infringement
and false designation of origin for the unauthorized reproduction
of portions of the photograph on the website for Sarah Palin's federally registered
political action committee, www.sarahpac.com, and on her Facebook
The suit claims that the photograph is being used by Palin and
the other Defendants to raise money for her political action
committee. The PAC website solicits and accepts financial
contributions from supporters and accepts requests for Sarah Palin
to make paid appearances at events, including media and campaign
events, and Palin's Facebook page provides links to this
website. The owner of the copyright in the photograph also alleges
that the use of the photo falsely designates the origin of the
photograph and that its appearance on the PAC website and
Palin's Facebook page is likely to cause confusion mistake or
deception as to the source or ownership of the photograph, falsely
representing that Palin or the PAC owns the copyright
when they do not.
Defendants have responded to the Complaint by moving to dismiss it on grounds of improper
venue, failure to state a viable claim for false designation of
origin, and fair use of the copyrighted photograph.
Defendants' content that their alleged "commercial
use" is no different from the conduct of Google in its Google Books Project, which was recently held by the same court in which
suit was filed to favor a finding of fair use despite Google's
general commercial focus. They argue further that since the
photograph in question is "an iconic depiction of a compelling
and unforgettable historic moment" that there is a public
interest and demand for such newsworthy photographs, making its
reproduction a fair use. As to the remaining fair use factors, it
is argued that the cropped and altered version of the original
photograph was used only "to provide a visual context for the
accompanying text" conveying the message that the day should
not be forgotten, and that the use has had no effect on the market
for or value of the photograph itself.
Palin is not the first politician to be sued for copyright
infringement in connection with political activities.
As we have reported to you in the past, politicians in recent
and not so recent campaigns have also been brought to task for the
unauthorized use of copyrighted works.
It remains to be seen how this issue will be decided, and we
will report back to you with all further developments.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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