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Amended Complaint filed in 9-11 photo copyright lawsuit against Sarah Palin

Amended Complaint filed in 9-11 photo copyright lawsuit against Sarah Palin

Still no proof of fundraising using iconic photo of firefighters raising the flag at Ground Zero on 9-11.

We previously reported on the lawsuit by North Jersey Media Group against Sarah Palin and SarahPAC, over Palin’s use of a copyrighted photo of firefighters raising the American flag at ground zero on 9/11, Palin firefighter copyright lawsuit Complaint — no proof of “fundraising” off photo.

Considering that the photo was used only on a Facebook message remembering 9/11, and there was no proof the photo was used for fundraising, it seemed strange that NJMG would pursue a federal lawsuit. Normally, there is a demand to cease use, and no lawsuit if the use ceases.

Sarah Palin Facebook Page Three Firefighters Image

The original Complaint was very vague as to the notice given to Palin and SarahPAC about alleged infringement, and NJMG refused to provide me with a copy of the demand letter it said it sent.  Also, there was no evidence the photo was used directly for fundraising, although there was that allegation in the Complaint.

It appears, however, that NJMG is not letting go of the case, as it filed an Amended Complaint yesterday in federal court beefing up it’s allegations (1) that Palin and SarahPAC had sufficient contacts with New York State so as to be subject to personal jurisdiction in the Southern District of New York, (2) that notice was given prior to suit, and (3) alleged fundraising.

North Jersey Media Group v Palin Amended Complaint Caption

Yet the Amended Complaint still is pretty thin as to notice and alleged fundraising.

The Demand letter still is not attached to the Amended Complaint. Here’s the allegation as to notice prior to filing suit:

13. On or about September 12, 2013, NJMG, through its counsel, gave electronic notice of the infringement to SarahPAC and Sarah Palin through the “Contact Us” tool on www.sarahpac.com. On or about September 12, 2013, NJMG, through its counsel, sent a letter, by priority overnight mail, to SarahPAC and Sarah Palin informing them of the infringement.

14. Defendants did not remove the WTC Flag Raising Photograph from their web pages until after NJMG filed this action on September 13, 2013.

That’s rather thin notice. Who knows if the “Contact Us” notice was seen within the single business day (NJMG doesn’t say what time of day it filled out the form), and the overnight letter by definition would not have been seen, at the earliest, until the day of the lawsuit.

Similarly, the allegations of use of the photo for fundraising still does not allege a specific fundraising solicitation using the photo. The allegation is simply that SarahPAC solicits funds, and since the photo appeared on its website, that constituted fundraising:

18. 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. Specifically, the web page, www.sarahpac.com, solicits and accepts financial contributions from supporters. Further, www.sarahpac.com accepts requests for Sarah Palin to make paid appearances at events, including media and campaign events. The web page www.facebook.com/sarahpalin contains a link to www.sarahpac.com.

That’s a stretch in logic, made all the more implausible by the fact that the only evidence attached to the Amended Complaint that the photo was on the SarahPAC website was a sidebar Facebook feed from Palin’s Facebook account.

The allegations of continued use after a demand to cease, and profiteering from fundraising, are important elements of NJMG’s demand for statutory damages.  If there is no proof of those allegations, it’s hard to understand why NJMG is continuing the lawsuit, since the photo was taken down almost a month ago.  (See the legal context explained by Ron Coleman at the bottom of this post.)

We reached out for comment both to NJMG and Palin/SarahPAC — by email to addresses we know to be good, not just to the “Contact Us” tool.

As of this writing, no one has responded.

North Jersey Media Group v SarahPAC and Sarah Palin – Amended Complaint

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Comments

Karen Sacandy | October 8, 2013 at 11:04 am

Very thin notice. May not have seen the notice,may not have had time to speak with anyone about it, (lunch, anyone? meetings, anybody?) such as an attorney.

They were spoiling for a fight.

I didn’t realize there was a copyright on this photo. That saddens me, because of what it is.

Have the firemen depicted gotten a cut? Or just the opportunity to search for remains?

Typical frothing mouth libs. Any excuse to inconvenience her. Palin is out of real politics but serves as a political philosopher, if you will. And yet, the left goes out of their way to harass and inconvenience her. How I wish she would be president, if only for the amusement factor.

I had an extremely liberal family friend start to chastise me at a party because I was following Sarah Palin on Facebook.

She literally shouted, why would you do that? I replied because I get amused when people go crazy just over her name. I thought she was going to explode. She didn’t seem to realize that she was feeding into her own narrative.

Good stuff.

>>”it’s hard to understand why NJMG is continuing the lawsuit”

Not really. They hate her fu*king guts, like all their peers do. They want to be the one that “bags the elephant.” They’d be heroes on the mainstream Left if they won a huge judgment against her. The merest outside chance of it happening is worth every penny their litigatory investment here.

Consider this: take down notice sent at 11:58 PM on 9/12, Alaskan/Hawaiian time (5:58 am Eastern on 9/13) Suit filed at 8:00 am Eastern time. compliance time allowed = 2 hours, 2 minutes, in the dead of night. I don’t know that is what happened, but it would fit the assertions.

    Phillep Harding in reply to Loren. | October 8, 2013 at 11:41 am

    (blink, blink) ? An east coaster being aware that the whole world does not operate on New York Time?

Does the plaintiff pay in NY if the lawsuit is deemed frivolous? (What am I saying? lol. Frivolous lawsuits in NY?!?!?! Say it ain’t so Joe!, Say it ain’t so!)

I realize this is a federal trade issue, but are there rules for this kind of thing, no?

“In the United States, Rule 11 of the Federal Rules of Civil Procedure and similar state rules require that an attorney perform a due diligence investigation concerning the factual basis for any claim or defense. Jurisdictions differ on whether a claim or defense can be frivolous if the attorney acted in good faith. Because such a defense or claim wastes the court’s and the other parties’ time, resources and legal fees, sanctions may be imposed by a court upon the party or the lawyer who presents the frivolous defense or claim. The law firm may also be sanctioned, or even held in contempt.” – From Princeton.edu

http://www.princeton.edu/~achaney/tmve/wiki100k/docs/Frivolous_litigation.html

Lawsuit harassment is not new to Sarah Palin. She was sued over 30 times when she was Governor. Alaska does not cover legal expenses and Palin was forced to spend a great deal of time raising money to defend herself. Only one suit stuck, that she expensed her children’s travel when she had to leave home to travel to Juneau for the legislative session. The dollar amount was insignificant and she paid it.

Given a choice of remaining as governor and being the target of more litigation or accepting a lucrative contract with Fox News, she chose the latter.

More than any other individual, Sarah Palin gets under the skin of liberals. She speaks in terms that register. It may not be Harvard or proper English, but it is devastating. Democrats are simply going back to their old playbook. Harassment is the game. Winning the case is irrelevant.

    Juba Doobai! in reply to Corky Boyd. | October 8, 2013 at 2:36 pm

    Of the most part, I agree with you but on this point: there’s nothing wrong with Palin’s English. She’s a fluent and grammatical speaker who articulates like an extensive reader and writer. People, meaning the LSM and other socialist nuts, like to rail against Palin’s English because they don’t know English. She does.

    malclave in reply to Corky Boyd. | October 8, 2013 at 8:22 pm

    Was that in addition to all the ethics charges filed against her that she had to defend against?

    I vaguely remember that ONE of those charges was not dismissed… that she had allowed her husband to have a meeting with someone in her office when she was governor. I told one guy I knew online (a Palin hater) that if that was the most unethical she got, the whole country should get down on its knees and beg her to be President.

Palin’s legal bills were more than double the combined incomes of her husband and herself. The Wasilla Project “activists” were aware the couple they were targeting had a Down’s syndrome child at home as well. The Fox News offer came, I suspect, only after she resigned, as did the Alaska mini-series; her resignation seemed to be a closely guarded secret, to the point that her successor Gov. Parnell did not know until only a day or two before. The personal nature of the vendetta against her, culminating in McGinnis’ move next door, makes Kafka look like Jane Austen.

“On or about September 12, 2013, NJMG, through its counsel, sent a letter, by priority overnight mail ” —

I don’t know legal terminology, but in plain English isn’t “on or about” a dodge? Can’t they say outright whether in fact they sent it “on September 12”?

Let’s supposed they did, and she received it sometime on Sept. 13, and the image wasn’t taken down until sometime after sometime on Sept. 13 …

Sounds like thin gruel to me.

Priority overnight to Wasilla, Alaska? I’ll bet that did not happen. How many miles is that in flight time alone, nonstop?

Karma, the giants and devils suck.

Palin Derangement Syndrome on display.

It’s time for an “Everybody Use this Photo Day”.

To clarify something that the Professor said, it isn’t really getting the statutory damages that is the intent of showing notice, but rather, that they are greatly increased if the infringement were found to be willful. Normal statutory damages range between $750 and $30k, while willful damages can be as high as $150k, and innocent infringement as low as $200 (hard to prove these days after the US joined the Berne Convention 2 1/2 decades ago, which made formalities al but irrelevant for securing C/R protection). Also, I suspect that proving intentional infringement would increase the likelihood of getting attorney’s fees.

Absent proving willful infringement, this suit would likely suffer the fate of many IP cases – they would likely cost the plaintiff more than they could expect to recover in litigation costs. Last I knew, the average C/R case would typically cost maybe $150k, and that has likely gone up since then. Willful Statutory Damages plus the award of attorneys’ fees make this potentially a decent economic case to file. Absent the willful damages and the surety of attorneys’ fees, this is much less certain.

But, so far, it looks like the notice and the filing suit, along with the actual takedown, make this a hard case in which to show willfulness. And, indeed, trying to show willfulness from sending the takedown notice only several hours before filing suit would seemingly be near frivolous, which might cost them their attorneys’ fees.

This should be interesting.

    sequester in reply to Bruce Hayden. | October 9, 2013 at 6:58 pm

    The copyright owners face the very real possibility of a Court finding that the copyright owner has licensed the photo free of charge for non-profit use. That could be a disaster.

    This is not a battle worth having.

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