"Gay Couple Sues After Finding Pic on 'Hate Group' Mailer"

[john_h.1]

<p>http://abcnews.go.com/Health/gay-couple-hate-group-misusing-engagement-photo/story?id=17329214#.UGO6mK7AHLQ</p>

[richard__]

<p>The NYTimes has an <a href="http://cityroom.blogs.nytimes.com/2012/09/26/gay-couple-sues-conservative-group-saying-it-stole-their-kiss/">article</a> on this also.</p>

<p>Seems like a very effective infringing use of the photo.</p>

[tom_mann1]

<p>Richard, would you pls. clarify what you meant by your second sentence. Are you saying that the use of the photo was effective? If so, effective in what way?</p>

<p>Tom M</p>

[richard__]

<p>According to the Times article, the use of the photo resulted in two different people running for office being defeated in their respective primaries.<br>

Which is what was intended when the photograph was missappriated, embellished and used without permission by '<a href="http://www.publicadvocateusa.org/">Public Advocate of the United States</a>'.</p>

[daverhaas]

<p>But it was on the internet, that makes it available and free, doesn't it? (Ok - Sarcasm off now)</p>

<p>Sounds like someone got their hands caught in the cookie jar. Pretty open and shut case - I don't think that fair use, or any other defense will work in this case. </p>

<p>Dave</p>

<p> </p>

[h._p.]

<p>There is always someone, somewhere, who will turn his, her or its bile on someone else's happiness. I'm not gay and I'm from that generation who are a bit discomforted by that particular life choice but I can certainly imagine how upset the couple and their photographer must be by this incident.</p>

<p>While not a fan of huge civil fines, I think a judgement in the region of a hundred million might not be inappropriate.</p>

[sarah_fox]

<p>Wow, I have very conflicted reactions to this issue! My immediate reaction is to be offended and sympathetic to the couple. My second reaction is to consider "fair use" issues in much the same way an ACLU attorney might consider the KKK's right to stage a peaceful demonstration. I don't really know whether "fair use" would apply here, as the editorial nature of the photo's use seems dubious at best. Had they been discussing the photo in the ad, fair use might apply, but the ad discusses the issue of same-sex relationships instead.</p>

<p>My third reaction is that the right wingers really should have paid two male models to kiss for their own photo. If no models were available for the shot, they should have recruited two volunteers from their ranks. (The thought of that makes me smile.)</p>

<p>My fourth reaction is that this is a very teachable moment. The couple could go public in Colorado about what it means to be violated in this manner by a hate group. Nobody likes a bully. I would think the Matthew Shepard Foundation might be able to come together with them on this. Remember that Shepard was burned to death pretty much in their neighborhood.</p>

[Norma Desmond]

<p>I would hope that the State Senator who lost because of this misappropriation would stand by the couple as evidence of two people in a loving and committed relationship who should be models for society rather than the subject of this kind of abuse. Politics doesn't end with one's losses. That's where it often begins. Sure, the couple should go ahead and sue but no one should buy into the notion that showing a picture of two people kissing is a legitimate kind of hate. It's a little like people who are falsely "accused" of being gay. Their reactions, as well as some of the "accusations" tell a lot. They can react graciously about it, in the sense of that great Seinfeld episode and emphasize the "not that there's anything wrong with that" or they can recoil from it and protest too much, sort of passively buying into the notion that being called gay is a slur, which it is not. The use of this picture was MEANT as a slur but we have to tell the world that it is NOT a slur. It's a beautiful photo. These idiots used a beautiful photo and don't even realize it. They're the fools.</p>

[jeff_sudduth]

<blockquote>

<p>My second reaction is to consider "fair use" issues in much the same way an ACLU attorney might consider the KKK's right to stage a peaceful demonstration.</p>

</blockquote>

<p>A peaceful demonstration on a public street or in a public park is not the same as going to someone's private blog, stealing their wedding photograph, and using it for a hate speech mailer. Not the same thing... not even close.</p>

 

<blockquote>

<p>or they can recoil from it and <strong>protest too much</strong>, sort of passively buying into the notion that being called gay is a slur</p>

</blockquote>

<p>I think it is offensive to tell a gay person they are really straight and I think it is offensive to tell a heterosexual person they are a homosexual. I don't think homosexuals or heterosexuals can complain "too much" if someone attempts to impose a sexual orientation on them.</p>

[Norma Desmond]

<p><<<<em>I think it is offensive to tell a gay person they are really straight and I think it is offensive to tell a heterosexual person they are a homosexual.</em>>>></p>

<p>Yes, that's fine. But I was talking about those reactions that go beyond being offended by the <em>imposition</em> (of the wrong sexual orientation) and suggest that the sexual orientation itself is somehow offensive or that its application to them would be humiliating.</p>

[sarah_fox]

<p>@Jeff: I meant that I don't like what they did, but I see value in "fair use" and would defend fair use if that's what it is. Under certain circumstances, and for certain uses, Jeff, I can go to a private blog of yours, "steal" your photo, and use it without your permission -- without paying you a penny of compensation. There are strict limitations on how I might use it and for what purposes, but within those limitations, it's perfectly legal. What's more, if it were not legal, much of what we do as photographers would be difficult or impossible. Try taking photos in an urban environment without catching anything copyrighted in your images! Macros of cement, perhaps? </p>

<p>The use of the "stolen" photo could POSSIBLY be defended as fair use, but the arguments might be rather murky and gray. Whether using the photo for a campaign ad is editorial is questionable. Whether substituting the background is transformative is also questionable. Nevertheless, I feel it's important to weigh these arguments. I'm still offended by what they did, just as I'm offended by rednecks in bed sheets peacefully delivering their racist message. However, I'll defend fair use just as passionately as free speech. They are related issues.</p>

[Spearhead]

<blockquote>

<p>Whether using the photo for a campaign ad is editorial is questionable.</p>

</blockquote>

<p> <br>

The word "ad" in there makes it pretty clear it can't be fair use. Being "political" doesn't make it "editorial."</p>

[sarah_fox]

<p>Dunno, Jeff. It's not an ad for selling a product. The flyer asserts a position illustrated with the photo. Without the photo, the statement would make no sense, thus the vague editorial aspect of the photo. I feel if the image had been used slightly differently, its use might be more defensible as editorial. For instance, what if the flyer had been an article, and what if they used the unaltered photo to say, "Those awful same sex couples are marrying each other in Liberal NYC. Look, here's the evidence! (Insert photo.) And now Jean White wants the same thing to happen here in the great state of Colorado. Pretty soon everyone will be gay. Oh my!" The editorial use argument would still be a bit thin, but perhaps not as much so.</p>

<p>Ironically, there would be better grounds for a fair use claim if they had photoshopped the couple into ballerina costumes to mock them. Satire is a protected use.</p>

[Spearhead]

<blockquote>

<p> It's not an ad for selling a product.</p>

</blockquote>

<p> <br>

Irrelevant. Read up on the four factors. It's copyright violation.</p>

[Spearhead]

<blockquote>

<p>there would be better grounds for a fair use claim if they had photoshopped the couple into ballerina costumes to mock them. Satire is a protected use.</p>

</blockquote>

<p> <br>

Not by itself. The four factors stil are generally considered. And simply mocking a photo doesn't constitute valid use as pardoy. All your examples are weak and unlikely to pass the four factors. While they aren't absolute, this is appropriation for commercial purposes. And usage in editorial without compensation or permission raises issues around the potential market factor.</p>

[sarah_fox]

<p>The profit aspect of an ad is not irrelevant, Jeff. It's an important aspect of the Purpose and Character of usage. And I disagree that there was any impact on market factor. The photographer would have already been compensated by the couple and would have no additional sales potential. Even if the couple might be inclined to buy extra printed versions of the photo from the photographer, they could not possibly want a copy of the flyer instead. The photographer's sales of the photo would be utterly unaffected.<br /> Being the devil's advocate here,</p>

<ul>

<li>Marketing impact - none</li>

<li>Amount of material used - very little (1 photo out of an album)</li>

<li>Purpose and character of use - Not for profit -- used by nonprofit org. For "educational" purposes or commentary? Yes, or so it might be argued. However, it's not commentary about the couple, which would seem to weaken the claim in my eyes. The work is transformative, owing to the background substitution and the superimposition of the message.</li>

<li>Nature of the work -- It was published on a blog and therefore made public. Further, it is documentary in nature.</li>

</ul>

<p>So I can honestly see arguments favoring all four factors -- perhaps not great arguments, but perhaps not bad ones either.</p>

<p>Again, this is not to say I approve of what was done. It was clearly disgusting.</p>

<p>EDIT: Ah, you mean the potential marketing of the photo by the photographer for use in the flyer. Yes, I see your point. On the other hand, would the photo have conceivably been for sale for that use? I suspect not. Interesting discussion, Jeff, but I'm off to bed now. You have 3 hr of advantage in this discussion! G'nite! ;-)</p>

<p> </p>

[sarah_fox]

<p>Next morning, opposite side: I'll mention that the one factor that clearly swings me away from feeling this was fair use is that the photo was used to comment on a politician who was not in the photo and had no relation to her. If they had used a photo of the politician instead, that would have more clearly been fair use. (It's a common practice in negative political advertising).</p>

<p>The only reason they used the NYC couple's photo was that it was there, they could copy it, and they could use it without paying for it. Had they been willing to pay, they could have had any number of stock photos of essentially the same thing:</p>

<p><a href="http://www.gettyimages.com/Search/Search.aspx?contractUrl=2&language=en-US&family=creative&p=gay+couple+kissing&assetType=image">http://www.gettyimages.com/Search/Search.aspx?contractUrl=2&language=en-US&family=creative&p=gay+couple+kissing&assetType=image</a>#</p>

<p>I'm rooting for the couple, but I'm also rooting for a thoughtful discussion of fair use issues.</p>

[andylynn]

My first pass, not a lawyer analysis:

 

The photographer has a cause of action for copyright infringement for both the direct copying and the derivative work.

If the photo was registered before the case was filed it could potentially result in a large amount of money changing

hands. Particularly in her name was on the cease and desist letter. I don't see a fair use defense being likely to work

here.

 

The couple has no cause of action for copyright infringement but could try a bunch of state tort claims. I don't know

how the causes of action read in Colorado but some possibilities would be invasion of privacy and unwanted publicity.