Former Republican Vice Presidential candidate Sarah Palin continues to make headlines. In September 2013, North Jersey Media Group (NJMG) filed a federal lawsuit against Palin and her political action committee (SarahPAC) for copyright infringement. The suit alleges that Palin posted NJMG’s iconic “WTC Flag Raising Photograph” on Palin’s Facebook page without permission. The photograph, taken by a staff photographer for NJMG, depicts three firefighters raising an American flag over the rubble of the World Trade Center on September 11, 2001. Screen shots from Palin’s Facebook page showed the picture posted on September 11, 2013 with the caption “We will never forget.” NJMG asked the court to force Palin and SarahPAC to pay damages on profits from the photo.
On December 12, 2013, Palin filed a motion to dismiss the lawsuit. Palin argues that her use of the photo constitutes fair use. A “fair use” defense allows a defendant to use a copyrighted work for limited purposes. Courts weigh a handful of factors to determine if a defendant’s use, although unauthorized, should be allowed without permission.
A fair use factor is whether or not the defendant used a copyrighted work for a commercial advantage. Palin argues that the photograph was not used for a commercial advantage, but “provide[s] a visual context for the accompanying text;” i.e. a message of heroism for those who sacrificed their lives on September 11th.
Visitors to Palin’s Facebook page can contribute funds to SarahPAC. Although the unauthorized photo accompanies a Web site that solicits donations, Palin argues that it does not constitute commercial use of the photograph. Rather, the cropped version of the photograph highlights the importance to remember 9/11 and is entirely non-commercial. According to Palin, NJMG’s Amended Complaint fails to allege that Palin’s use of the photo has any effect on the potential market value for the photo.
Aside from the fair use defense, Palin is asking the court to dismiss NJMG’s claim for “False Designation of Origin” under federal trademark law. NJMG contends that Palin is falsely designating the origin of the photograph by posting it on her Facebook page. Palin contested this claim and said that NJMG never alleged the existence of a trademark in the photograph, therefore cannot claim false designation of origin.
Commentators originally expected the case to settle, but Palin is proving that unlikely. If the court agrees, Palin’s fair use defense will shield her from liability for copyright infringement.
The “WTC Flag Raising Photograph” can be seen accompanying this blog.