United States: Can Private Photos Be Used In Political Ads Without Permission? Colorado Court Rejects Gay Couple’s Misappropriation Claim; Copyright Claim Survives

Last Updated: April 14 2014
Article by David A. Kluft

When we upload family pictures to the internet, we understand that, in theory, anyone in the world might download them and use them for some nefarious purpose.  However, we usually take comfort in the fact that most of us just aren't interesting enough to be noticed. But that wasn't the case for New Jersey couple Brian Edwards and Thomas Privitere.

In 2010, Edwards and Privitere got engaged and created one of those obligatory saccharine websites to provide information about their upcoming wedding. With the permission of photographer Kristina Hill, they included on the site a photograph of themselves kissing in front of the New York City skyline. The couple were married later that year, and it would have been reasonable for them to assume that nobody was going to pay much attention to the site after that.

But in 2012, a Colorado-based entity calling itself "Public Advocate of the United States" downloaded the picture, cut out the kissing couple and repurposed the image for political flyers attacking state politicians who had expressed support for gay rights. Because they were upset that the image had been put to this purpose, the couple and the photographer brought suit in the District of Colorado for misappropriation of a likeness and copyright infringement. The defendants filed a motion to dismiss. Judge Wiley Daniel issued his opinion on March 31, 2014.

An Expansive View of "Reasonable Relations"

Judge Daniel first addressed the misappropriation claim. Under Colorado law, a defendant may not make unauthorized use a plaintiff's name or likeness "for the defendant's own purposes or benefit, commercially or otherwise."  However, unauthorized use is permissible if the context is a protected First Amendment activity, such as non-commercial speech that is "reasonably related" to "matter that is newsworthy or of legitimate public concern."

Judge Daniel found that, because the flyers did not propose a commercial transaction, they were non-commercial. Furthermore, Judge Daniel held that same-sex marriage is a matter of public concern, and "it cannot be said that the lifted portion of the photo is not reasonably related to same-sex marriage."  On this basis, Judge Daniel ruled that the flyers were protected First Amendment Activity, and dismissed the claim for misappropriation of a likeness.

This ruling begs several questions. What does it mean to be "reasonably related" to an issue of  legitimate public concern for First Amendment purposes? Same-sex marriage is undoubtedly a subject of public concern. But Edwards and Privitere weren't advocating for same-sex marriage — they were just getting married. Is every same-sex couple in the country "reasonably related" to this issue such that any photograph of them may be used without their consent? If the subject of public debate is the definition of marriage, why aren't all pictures of any married couple up for grabs – straight or gay? And is this issue a special case, or does the theory extend to less controversial topics? Can I, for example, download a picture of a random stranger drinking beer in a car and use it to advocate against drunk driving?  How about a picture of a stranger's child to advocate for increased primary school funding? Creepy.

A Copyright Coda

Appellate answers to these questions may have to wait, because the copyright claim survived.  The defendants had argued that the flyers were intended to educate voters and therefore a "fair use" under 17 U.S.C. §107, which expressly includes "nonprofit educational purposes." In a somewhat odd opinion, Judge Daniel issued rulings on the first three fair use factors, and then held that it was premature to address the fourth (the effect on the market) prior to discovery. As to the first factor — the purpose and character of the use — Judge Daniel held that the flyer was "not the type of "educational purpose" contemplated by the statute," and therefore not a fair use. It is not clear why the Court did not address other protected activity under Section 107 (such as "comment" or "criticism"), or whether those issues are still open for discussion.

The parties will presumably now proceed to discovery, unless one side or the other attempts an interlocutory appeal.

To view Foley Hoag's Trademark and Copyright Law Blog please click here

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