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Palin firefighter copyright lawsuit Complaint — no proof of “fundraising” off photo

Palin firefighter copyright lawsuit Complaint — no proof of “fundraising” off photo

Another media meme is created. Plus — some legal lessons.

A lawsuit filed late on Friday, September 13, 2013, by North Jersey Media Group (NJMG) against SarahPAC and Sarah Palin for copyright infringement garnered the expected media attention firestorm.  While the media has been all over the case, no one seems to have obtained the actual Complaint — we did and it’s embedded at the bottom of the post.

As reported in various places, the lawsuit sought to stop Palin from using the famous photo of three firemen raising the flag at Ground Zero.

The image is widely used on the internet, and even has an entry at Wikipedia, where one can obtain a full size image of the photo:

Wikipedia Three Fireman Raising Flat page 9-15-2013

The copyright to the photo is owned by NJMG, whose photographer took the photo.  NJMG has licensed the image to many groups with the proceeds donated to 9/11 related charities, including The Bravest Fund.

NJMG has been fairly aggressive in the past in filing suit, but almost always suit was filed against people who used the image to sell merchandise.  I located the following lawsuits: Image Source (Sale of photo prints), Cafe Press (sale of merchandise), Nunn (sale of photo prints), Italian Charms (sale of merchandise); Hand (sale of pins); Sasson (former employee posted photo on the website he set up soon after being laid off to criticize owners of NJMG).

The photo was used by Palin on Facebook on September 11, 2013 (screenshot via Alaska Dispatch):

Sarah Palin Facebook Page Three Firefighters Image

By September 14, NJMG had filed suit in federal court in Manhattan (copy of complaint embedded at bottom of post).  The suit alleged use not only on Facebook, but on the SarahPAC website:

10. Defendants have, without permission, posted a copy of the WTC Flag Raising Photograph on their web pages, including at least www.sarahpac.com, a copy of which is annexed as Exhibit C, and www.facebook.com/sarahpalin, a copy of which is annexed as Exhibit D….

14. Defendants have infringed NJMG’ s WTC Flag Raising Copyright in violation of 17 U.S.C. § 501 by using it to promote Sarah Palin, and to raise money for SarahPAC.

The Exhibits to the Complaint, however, do not show the image being used for fundraising, except perhaps in a very indirect way at most that anything that appears under Palin’s name with the SarahPAC logo could be construed as fundraising.  Certainly, there are no exhibits to the Complaint showing solicitation using the photo.  Also, the inclusion on the SarahPAC website appears to be through a Facebook feed widget; it’s unclear if it was used elsewhere on the website.

Not surprisingly, the media is reporting the fundraising angle with reckless abandon:

Newsday Palin Copyright Suit headline

This is the meme that will live on forever:

Perez Hilton Palin Copyright Suit

So why did this get to a lawsuit?

We have not found anything to indicate that the owners of NJMG are politically hostile to Palin or to Republicans.

NJMG says that it sent a demand letter but received no response:

Jennifer A. Borg, vice president, corporate secretary and general counsel for North Jersey Media Group, said the lawsuit was filed Friday when neither Palin nor the PAC responded to a letter. “It is important to enforce our copyright on this iconic photo,” Borg said. “When neither Ms. Palin nor representatives from her PAC responded to our demand letter to remove the photograph, we were left with no choice but to seek redress in court.”

NJMG declined to provide me with a copy of the Demand Letter, which would indicate to whom and how it was sent.  In any event, suit was filed very quickly — within two business days.

It is unclear if SarahPAC or Palin ever actually received the demand letter.  Once the suit was publicized in the media, Palin took down the Facebook entry.

Neither NJMC nor SarahPAC would speak on the record about whether SarahPAC/Palin received the demand letter prior to suit or whether the parties were close to resolving the issue.

What we might have here is a failure to communicate.

I’m guessing this will settle, probably with some donation to charity and statements from each side, respectively, (a) noting NJMG’s rights in the photo and insistence that it not be used for gain, and (b) SarahPAC’s insistence that it all was an unintentional and regrettable misunderstanding.

Some Legal Lessons:

I asked Ron Coleman, a well-known copyright and intellectual property attorney who represents many media entities and bloggers (including Legal Insurrection) some general questions which readers might find informative:

Q. “What’s the significance of the copyright being registered?”

A. It’s critical. Under modern copyright law, you don’t need a registration to own a copyright; it is effective as soon as your creative idea is made tangible in some form. But without a registration, you can’t enforce that copyright, meaning you can’t sue for damages or for an injunction. If you did not register and then the need for legal action to enforce the copyright arises later, you can still get a registration. That allows you to file a lawsuit. But if you waited more than 90 days after the first publication of your original work to get your registration, you’re closed out on both the option of statutory damages and attorneys’ fees provided for the statute. That’s the tradeoff Congress made in return for the presumption of “notice” on the whole world that comes with copyright registration: You have to register promptly to get the full benefit.

Q. “What lessons does this hold for use of photos on Facebook and elsewhere on the internet?”

A. Not a very new lesson. It’s so easy to grab the perfect photograph or other graphic element to enhance a blog post or website we often forget that even very famous images — often, especially very famous images — are protected by copyright. The lesson here is that even if “everyone else” seems to be using an image, your use may not go unnoticed by the rights holder. Also, what you think is ubiquitous free use may not be: Sometimes you’re only seeing limited, permissible fair use that does not require permission, or you’re seeing a licensed use. Assume that what is not explicitly permitted, in terms of anything remotely recent, is prohibited.

Q. “What is the standard to obtain statutory damages for social media use of copyrighted photos?”

A. There isn’t a different standard for social media use — which is itself a very broad category of types of use — that differs from non-social media use. Ultimately the award of statutory damages lies with the discretion of the court, or the jury if there is a trial, which is very rare.

Q. “Does it matter whether monetary profit was made from use of the photo?”

A. Profit and revenue in general are considerations that courts are required to consider. There is a split of authority as to whether statutory damages are meant as penalties or whether their purpose is to “stand in” for actual damages when actual damages cannot be assessed. If the latter is the case, courts usually link the amount of statutory damages to some estimate of what actual damages would be, based on factors such as the infringer’s “wrongful” profits (i.e., profits linked to use of the copyrighted material) or, in some cases, the lack thereof. Where you have a defendant that is readily amenable to process, participates in the proceedings, and is cooperative, it virtually never comes to a judicial award anyway. Typically, in fact, the copyright owner seeks to settle the case with a monetary settlement that is reasonably related to what the license fee for the unauthorized use would have been if the work had been licensed.

Note that this general rule, however, doesn’t usually apply to music file-sharing cases, which operate in a judicial and commercial twilight zone for all kinds of special reasons having to do with the music industry’s approach to maintaining control over its distribution methods. There the awards or settlements are way out of proportion to what the cost of a music download would be..

Q. “Does it matter whether use continued after being told to stop?”

A. It should, and it usually does.

North Jersey Media Group v Sarah Palin – Complaint.

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Comments

One can have a lot of fun defending this lawsuit. The complaint makes no mention of a cease and desist notice being sent. Secondly, the case is ripe for an unclean hands claim. I am willing to bet other politicians made use of the photo without obtaining a formal license.

It strikes me as the cheapest of politics.

    sequester in reply to sequester. | September 16, 2013 at 6:04 pm

    The website the copyright owner is http://www.groundzerospirit.org/.

    The give an email address to request authorization for non-profit use. For editorial use they refer you to Getty Images.

    I received a quote of $242 for use in social media for three months for “Politics/Government, Religion/Religious Services” and $705 for three months of commercial usage on the home page of a website.

      Juba Doobai! in reply to sequester. | September 17, 2013 at 12:01 am

      So they are making money off of the agony and patriotism of 9/11.

        sequester in reply to Juba Doobai!. | September 17, 2013 at 5:43 am

        For personal, noncommercial use the website sends you to another website that sells framed photographs. That gives rise to an argument that the photograph is universally licensed at no charge for personal, non-commercial usage such as your Facebook page.

        This lawsuit has all the aura of a mortgagor trying to foreclose because the check was received on the 2nd instead of the 1st.

not sure about FB but lot of software automatically can add watermark (like the sarahpac) to every image file on site, wonder if this is what happened.

— no proof of “fundraising” off photo

Proof?

We don’t need no stinkin’ proof!

BannedbytheGuardian | September 16, 2013 at 5:40 pm

If she does not have the time to scrutinise every output under her PAC then she should seriously re consider her priorities.

Sarah has her own copyright for her name & has served 2 desists. With a settlement from Gawker.

This round she messed up big.

Lesson – less hunting & more scrutiny for what is being sent out in her name. Get in or get out . Be fully involved as per her political income or not.

The politics of it are obvious but also show another weakness. She should have gone after McCain .

    huskers-for-palin in reply to BannedbytheGuardian. | September 16, 2013 at 6:55 pm

    oh puleeeze….after only two days of sending the “cease and desist” letter (where the photo was ALREADY taken down), they sued and shouted it to the press?

      BannedbytheGuardian in reply to huskers-for-palin. | September 16, 2013 at 7:15 pm

      Yes I am aware of that. It does not change the fact the pic was included on the PAC site.

      She has done very well for 4 years without office especially as a tweeter of exceptional skill .

      There are plenty of songs about this – I’m off to Robert Johnson & Crossroads.

        Oh please BannedbytheGuardian. The head of a legal entity is generally has no personal liability for acts of the entity. Does President Obama scrutinize the White House web site?Wikipedia writes

        This image is a faithful digitisation of a unique historic image, and the copyright for it is most likely held by the person who created the image or the agency employing the person. It is believed that the use of this image may qualify as fair use under United States copyright law. Other use of this image, on Wikipedia or elsewhere, may be copyright infringement. See Wikipedia:Fair use for more information.

        There was ample reason to believe the use of the photograph for non-commercial purposes was fair game.

    Man, stop jonesing for the woman!

    and what if the watermark is automatically added to all images?
    the watermark does not show up (on all the cms/platforms I have used) during the upload and article/post creation but is added after the actual publishing. So it MAY be possible it was not even seen initially.
    not sure if thats the case here as I do not use FB for anything except a login authenticator for my site.

    Don’t be silly Sarah Palin does not have a copyright on her name.

      BannedbytheGuardian in reply to SPQR. | September 17, 2013 at 12:47 am

      As of June 17 2011 , Sarah Palin is a US registered trademark number 85-170,226.

      They contacted the only other Sarah Palin – a young lady who lived in Texas to ask if she had any objections which she did not.

      Sarah’s first application was missing a signature. & achieved some publicity at the time. This wa fixed & there it is.

      My mistake if I mixed copyright for trademark.

        There is a very large difference between copyright and trademark. Trademark registration just means that others can’t use her name to sell goods or services (depending upon the scope of the registration) and can’t claim affiliation.

          BannedbytheGuardian in reply to SPQR. | September 17, 2013 at 1:45 am

          No doubt she is very aware of both owning both copyright to her works & trademark for her services.. Both she guards closely.

          All the more reason she should be more observant about that which goes out under her name. In the populace at large unlike many other names her books (copyright) & name ( trademark) are intertwined more than most public figures.

          Outside of the legal issues is the political which is her main game.

          BannedbytheGuardian in reply to SPQR. | September 17, 2013 at 1:53 am

          I can’t stay to argue as I am off to fly across the continent for some weeks in the backcountry.

          I shall be ordering a glass o wine a chikkin wrap & download a movie .

          Look after the US for me .SPQR. Don’t start bombing .

Back in about 2001? 2002? when I had a science-based website & blog, I got a cease & desist use on a photograph I had taken myself of the Einstein statue displayed on the grounds near the National Academy of Science building in DC. The photo did look very similar, but the differences became obvious after a few minutes’ scrutiny. This was quickly cleared up, but the rights-holding photographer must have spent some bucks getting an attorney to action it. Dunno why neither saw the differences.

BannedbytheGuardian | September 16, 2013 at 6:00 pm

She should have used a pic that her Dad might have taken . He volunteered to help in the aftermath & got the job of scaring vultures from the piles of rubble on Staten Island.

Even now she could formally apologise to america put one of these up. That way she would be able to partition sentiment & copyright.

Two questions for the lawyers here. 1) Fair usage? 2) the photo in this article supposedly from Palin’s website appears to be the politically correct version of the photo with the photo-shopped black firefighter. Does copyright extend to an altered photograph or only the original? Does it matter if NJMG altered the photo or if it was a version altered by another?

    Bruce Hayden in reply to MarkS. | September 16, 2013 at 11:54 pm

    Fair Use – primarily determined by a four factor test found in 17 USC 107. The factors are:
    (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    (2) the nature of the copyrighted work;
    (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    (4) the effect of the use upon the potential market for or value of the copyrighted work.

    Factors #2 and #3 probably weigh against Fair Use, while #4 probably weighs in favor. Factor #1 is less clear. From that, I would lean against Fair Use, but not by much.

    As for the altered photograph, you have actually two issues. One is the unauthorized making of a derivative work, and the second is reproduction and public display of the derivative work. So, making a modified copy and putting it up on your web site may be even worse than just putting up the original, in terms of copyright infringement.

    In response to other potential questions – the problem with filing suit so quickly after supposedly giving notice is that they likely lost the possibility of willful infringement, which typicallly means lower damages. Don’t know the date of their registration, but if they missed the 90 day window, then they are stuck w/o attorneys’ fees or statutory damages, which leaves them with actual damages, which appear to be well below the attorneys’ costs (which would likely be > $100k).

      Bruce, let’s look at the allegation in regard to the 4 factors then:

      The four factors judges consider are:

      1) the purpose and character of your use

      2) the nature of the copyrighted work

      3)the amount and substantiality of the portion taken, and

      4)the effect of the use upon the potential market.

      Under factor #1) It is quite evident that Sarah Palin’s linking of the photo was to promote remembrance of 9/11. I see no conflict with fair use doctrine here.

      #2) The nature of the copyrighted work was in documenting a national tragedy, arguably this falls under public domain, and fair use for non-profit circumstances.

      #3) I would say here that the plaintiffs probably have the most cause for concern, but I don’t believe Sarah Palin ever took credit for the image, even though she did tweet it from her account.

      #4) Again, the market effect here is quite negligible, given that the image is pretty much plastered all over the internet in addition to Sarah Palin’s tweet.

      From this cursory evaluation of the factors, I still don’t see a problem with the usage. But that is only given the facts that I know at present. (That known facts disclaimer is always a good one 🙂 )

        SPQR in reply to Paul. | September 17, 2013 at 12:48 am

        The nature of the work means things like, was it a scholarly work or a commercial work? The #3 factor the amount taken here is 100%, as the whole photo was used.

          Paul in reply to SPQR. | September 17, 2013 at 12:58 am

          I was debating on whether or not a differentiation should be made as to whether or not a copyrighted work was artistic, scholarly, journalistic or commercial just earlier. It seems to me that any judgment in this regard is subjective and ripe for a myriad of interpretations.

          As to the nature of the work, it could be argued that the purpose of the work (Journalistic, scholarly, commercial, artistic) whether it regards private or public events could influence the outcome of a judgment on this factor as well.

          Bruce Hayden in reply to SPQR. | September 17, 2013 at 10:31 am

          This is why some attorneys are paid the big bucks – both these arguments could, and may be, made. I don’t read as much copyright caselaw as I used to a decade or two ago (likely as a result of having worked in a firm with a very good “soft” IP practice, where I was one of the few “hard” IP people – there were a number of attys wth a lot more C/R, and esp TM, experience than I there, so I did patent work instead). Any more, I know enough to get into trouble, and maybe enough to get out of it. Maybe. Know the questions to ask here, and where to look for the answers, but not enough to answer definitively off the top of my head.

          Still, Fair Use is typically not nearly as cut and dried as some people believe (not aimed at anyone here). So, I do read some of the Fair Use cases occuring around the country. In any case, given the dynamics, esp of Gov Palin, I would expect that at least some weight should be given here to the political leanings of the District Court judge handling the case – which may have been why it was filed in NJ, instead of, say, AK, or even AZ, apparently now SP’s second home. That puts it in the 3rd Circuit, which does have a majority of Republican nominees. While a lot on the right are not fans of Palin, she seems to be fairly uniformly reviled on the left. So, at least she starts without the bulk of the appeals court believing that she is evil incarnate.

          Bruce Hayden in reply to SPQR. | September 17, 2013 at 11:03 am

          Whoops – I misread the caption and stamp on the complaint. It was filed in the SDNY, and not in NJ, which puts it in the 2nd Circuit, which is traditionally one of the top C/R Circuits (along with the 9th on the west coast) Both the judge and the appeals court are likely to have a lot more experience dealing with C/R law than you would find throughout much of the rest of the federal judiciary. And, being NYC, I would expect it to be more plaintiff friendly (and maybe Palin unfriendly) than most districts.

          sequester in reply to SPQR. | September 17, 2013 at 1:38 pm

          I have no idea what the Nexus to Southern District of New York is for this lawsuit, other than Plaintiff’s counsel is located in the Empire State Building. Still the 2nd and 9th Circuits are the best “shots” for such a tenuous copyright infringement lawsuit.

          Despite being Democrats, I think most Southern District Judges will give Palin a fair hearing. Southern District Judges may be liberal, but they are also intelligent and skilled jurists.

          The failure to send a reasonable cease and desist letter will not sit well. I can hear some of the judges expressing their displeasure on that one. The optics of filing suit three days after alleged infringement are not good.

          Plaintiff’s best shot is with liberal Palin hating New Yorkers, not with a judge. That’s why the jury demand was made in this case. The bad news is that lots of Southern District jurors are high end executives pressed into service.

      sequester in reply to Bruce Hayden. | September 18, 2013 at 8:41 pm

      They did not miss the 90 day window. The work was registered on 10-05-2011 by North Jersey Media Group. The registration number is VA0001014297

[…] was quoted at length by my friend and client Bill Jacobson at Legal Insurrection about this.  So there’s not so […]

It’s unfortunate that the copyright belongs to the person/organization who took the photo, and not to the person(s) depicted in the photo.

Wonder how the firefighters feel about the selling of their image(s) and politicization thereof?

    Paul in reply to MrE. | September 16, 2013 at 7:40 pm

    Fair use doctrine allows for non-profit use of most images.

    To think that Sarah Palin was profiting from the use of this photograph by the manner in which it was used to remind people of 9/11, is stretching the bounds of reason.

    While this might suit tabloid publications, it doesn’t sit well in a court of law.

      Bruce Hayden in reply to Paul. | September 17, 2013 at 12:01 am

      Not really, in regards to Fair Use. For-profit use is only one factor of four weighed by the courts (see above). At one point, it was thought that this factor was paramount, but more recently, the courts have gone back to reviewing all four (looking at just whether it was for profit is plain error – courts have to analyze all four factors, or they will most likely get reversed).

      BTW – this was mistakenly posted below standalone (problems with the commenting software), but should be taken as a response to Paul’s assertion about Fair Use.

      inspectorudy in reply to Paul. | September 17, 2013 at 7:46 pm

      It seems to me that combining this picture with a political platform of patriotism and love of country would negate your claim of profit. It might help raise money from some but that is not the primary aim of the photo on her website. If she were running for an office actively then that too may qualify for “For profit” but to simply display it with no request for money does not seem to be a for profit motive.

9thDistrictNeighbor | September 16, 2013 at 7:17 pm

I used that photo on Twitter on 9/11. Prosecute Me!

Whoever owns the photo is a jerk. Anything, like this photo, pertaining to 9/11 should be public domain, and nobody should be sued for it as long as they are not attempting to make money from it.

    They may well be jerks. Indeed, the two day filing of the complaint pretty much confirms it.
    But that does not mean that their photo should be public domain.

      Paul in reply to SPQR. | September 17, 2013 at 1:14 am

      I don’t think people are arguing that the photo itself is in the public domain, though it could be argued as such, even being referred to in the complaint as an “iconic” image.

      However, fair use of the photo in documenting a call to remember the events portrayed in the photo could just as easily be argued.

      Time will tell how all this plays out in the courts. The complaint’s biggest hurdle, in my opinion, will be in the alleged “Willful infringement”. (16)

        Bruce Hayden in reply to Paul. | September 17, 2013 at 10:43 am

        Paul and I will have to continue to disagree, at least to some extent. The King family is still asserting a copyright over MLK’s “Dream” speech, and collecting royalties for it despite many, including me, believing that it should be essentially in the public domain, due to its iconic and historical nature.

        Also, keep in mind (again, not aimed at Paul, who does appear to understand this), the “public domain”” is somewhat of a term of art in C/R law – it includes the works that were never protected by copyright, and those where C/R protection has expired or lapsed. Since the US joined the Berne Convention (well before this photo was taken), pretty much any original expression fixed in a tangible medium, except for that which was created by the US govt, is protected by C/R, regardless of notice or registration. And, given the obnoxiously long term for C/R, any such work created w/i the last 25 or so years is almost assuredly still protected by C/R, and therefore is not in the public domain.

          Bruce, the difference in the copyright for the MLK “dream” speech is that it has been vigorously protected for the get go, in all cases. And the purpose of that vigorous defense has always been to maintain the integrity of the speech, in my opinion. Fair use for the speech in documenting the historical scholarly aspects of the speech are well considered. No one except the author’s family should profit from that speech. However, the speech itself and the ideas contained therein are well within rights for fair use in non-profit circumstances. If the King family had only patented the speech in such a way as to protect the idea “A Method for obtained a racial equal society” or some such 🙂

          “A method for obtaining a racial equal society”*

Is “inline linking” a photo — using an type tag which simply pulls the image from the owner’s public server — the same as actually copying an image and hosting it yourself?

The difference seems significant to me, though admittedly more from a technological standpoint than a practical one. Nonetheless, the tremendous widespread use of inline linking photos on the internet suggests that, if nothing else, the law needs to be re-examined.

If I put up a link to this blog post (https://legalinsurrection.com/2013/09/palin-firefighter-copyright-lawsuit-complaint-no-proof-of-fundraising-off-photo/) and it shows up as a link. If I put up a link to the screencap of the Palin Facebook post (https://legalinsurrection.com/wp-content/uploads/2014/09/Sarah-Palin-Facebook-Page-Three-Firefighters-Image.jpg) it will show up in many places as the image file instead of simply a link. But it’s still not being “copied” in any way different than if I’d viewed it on the original website. In both cases my browser is going to the original file location to display it.

    Hotlinking (or hot linking) is considered bad Internet etiquette because by doing so you’re using bandwidth from the originating website rather than your own. It’s often referred to a stealing bandwidth.

    A lot of sites use applications to prevent hotlinking content they serve. Other sites prevent hotlinking to content from another site. I wouldn’t even hotlink content from my own website.

      Bruce Hayden in reply to AZ_Langer. | September 17, 2013 at 12:06 am

      Hot linking may be in bad taste from a net etiquette point of view, but may be slightly better from a copyright point of view, since the party providing the link in their web pages is not actually copying (or reproducing) the image, but rather just enticing and facilitating such. In other words, inchoate crimes. This line is often blurred by the courts,, but still exists.

        Do you have case citations that I could read up on then? I seem to be behind the times in this regard, if what you say is true.

          SPQR in reply to Paul. | September 17, 2013 at 12:35 am

          Whether linking to another’s hosted image is a copyright violation by the linker is not really clear. Little on-point precedent.

          Paul in reply to Paul. | September 17, 2013 at 12:51 am

          Ah, where angels fear to tread then, eh? 🙂

          Bruce Hayden in reply to Paul. | September 17, 2013 at 10:49 am

          The biggest related litigation was probably the file sharing stuff, which by traditional C/R analysis should have ended up as inchoate crimes instead of direct infringement, but the conduct was so egregious (at least from the point of the plaintiffs and judges) that this line was blurred a lot in order to shut them down. I think a classic case of bad facts making bad law, but maybe where the law needed to move, given the digital nature of so much of our communications these days.

      toddlouisgreen in reply to AZ_Langer. | September 17, 2013 at 6:59 pm

      It may have been bad form fifteen years ago; now with the almost limitless bandwidth most servers enjoy & the nearly universal (and often oblivious) commonness of the practice it seems moot.

      But the question wasn’t whether it’s nice or not. The question is whether adding [img] tags around a photo’s URL turns an obviously non-infringing hot link into a copyright violation simply because the reader’s web browser (NOT the publisher’s, worth noting) produces the image in the main window instead of a link that, when clicked, brings up the image in a new window.

Back in 2001 I remember hearing at the office where I worked that that flag had been lifted from a boat at a marina near the World Trade Center. That was the rumor I heard.

Wouldn’t it be funny if these people are claiming an infringement of a photo portraying stolen property?

Not really, in regards to Fair Use. For-profit use is only one factor of four weighed by the courts (see above). At one point, it was thought that this factor was paramount, but more recently, the courts have gone back to reviewing all four (looking at just whether it was for profit is plain error – courts have to analyze all four factors, or they will most likely get reversed).

Nobody can find the flag used in that photo, either.

As soon as the photographer left, the flag was taken down. And, it “disappeared.” Where did it go? No one knows.

Oh, when Happy Birthday is sung in public places, someone somewhere expects royalties to be paid.

    Only because no one wants to litigate the issue, Happy Birthday is clearly out of copyright. There was an interesting paper on this on SSRI some years ago.

amatuerwrangler | September 17, 2013 at 12:51 am

Still confused over the “notice” aspect: is it a requirement that a notice or request to correct be issued prior to filing, or merely “the right thing to do”? And if either, does the law set a time within which the accused violator is required to respond? Can they get away with dropping it in the corner mailbox on their way to the court to file the suit?

My BS alarm went off when the plaintiff could/would not supply a copy of said letter and it did not appear as an exhibit in the filed suit.

An interesting aside, the iconic Obama image poster case with the AP could prove useful in some aspects as a study:

https://en.wikipedia.org/wiki/Barack_Obama_%22Hope%22_poster

I’ve asked elsewhere but I should have asked here. The media group is saying that they have suffered irreparable harm by Palin’s use of the picture.

Is that just legalese to justify suing Palin or do they actually have show how their product vale was impacted? It isn’t like the picture was used in a disrespectful or demeaning way.

    Bruce Hayden in reply to katiejane. | September 17, 2013 at 10:54 am

    Irreparable harm is one of the requirements for equitable relief, which means that it is a requirement for any injunctive relief sought. Otherwise, they are stuck with legal remedies, which means damages here. Used to not matter as much, but the Supreme Court cleared this up a couple of years ago.

Just musing here. I wonder how many other suits were filed by this company for the use of that “iconic” image on 9/11, or was SP simply singled out? Did the PAC receive a cease and desist order?

    toddlouisgreen in reply to MAB. | September 17, 2013 at 2:58 pm

    Muse less, read more.
    See, e.g., paragraph beginning “NJMG has been fairly aggressive in the past in filing suit” and paragraph beginning “NJMG says that it sent a demand letter but received no response.”

      Thanks for your “kind” words. I probably passed Reading 101 when you were still in diapers, but that’s neither here nor there. I read both “bits” you cite and much more, and my question stands. How many others were singled out this time around? More than one or just this one? P.S. lack of reading or understanding has never been one of my problems. I always have been, am, and will continue to be an avid reader.

        platypus in reply to MAB. | September 17, 2013 at 7:35 pm

        So where do I fit in? I sense things rather than read them.

        Thanks,
        Spiderman

        toddlouisgreen in reply to MAB. | September 18, 2013 at 11:03 am

        ” I probably passed Reading 101 when you were still in diapers…”

        So you’re about a year older than me? Unless you’re suggesting that you didn’t learn your ABCs until you were much older than normal…

        (“Rhetoric” was a 300-level class when I took it at Cornell in the early 90s if I recall correctly )

[…] Palin is in the news again, this time for a curious copyright dispute regarding a famous 9/11 […]

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