Argues use in Facebook post commemorating 9/11 was non-commercial “fair use.”
We previously have written about the copyright suit by North Jersey Media Group, Inc. (NJMG) against Sarah Palin and SarahPAC based on a Facebook note by Palin commemorating the attack on the World Trade Center on September 11, 2001:
- Palin firefighter copyright lawsuit Complaint — no proof of “fundraising” off photo
- Amended Complaint filed in 9-11 photo copyright lawsuit against Sarah Palin
The Facebook note used an iconic image of three firefighters raising the flag at Ground Zero.
Although the Complaint and Amended Complaint alleged that the photo was used for fundraising, neither of those court filings demonstrated specific fundraising use. Instead, the claim appears to be that anything Palin did for SarahPAC implicitly was fundraising.
I expected the case to settle, not because of any inside knowledge, but because the use was not for commercial advantage, and was taken down immediately. There was question as to whether Palin and SarahPAC even received actual notice of a take-down demand. Suit in federal Court was filed just two days after the Facebook entry.
Apparently the suit has not settled, because Palin’s attorneys filed a Motion to Dismiss in court yesterday. (Full motion and supporting Memorandum embedded at bottom of this post.)
In the Motion to Dismiss, Palin and SarahPAC argue:
Since NJMG is located in New Jersey, SarahPAC is a Virginia corporation, and Palin resides in Alaska, defendants argue that federal Court in Manhattan is not a proper location for the lawsuit:
In short, a New Jersey newspaper has chosen New York as the forum to sue defendants located in distant states, based on conduct with no particular connection to this District besides the subject matter of the photograph—a consideration that is irrelevant for purposes of venue. Defendants therefore seek dismissal under Fed. R. Civ. P. 12(b)(3) on the ground of improper venue or, in the alternative, for transfer of this action to an appropriate forum.
False Designation of Origin
Jersey Media’s Amended Complaint does not allege, even in conclusory fashion, the existence of a trademark. Indeed, no one reading the Amended Complaint has any way of divining what that trademark might be. “The Plaintiffs have not alleged in the Amended
Complaint that they have a protectable mark . . . Therefore, although the Plaintiffs allege that . . . the Defendants are falsely designating the origin as to the affiliation, connection, and association between the [their product] and [Plaintiff’s product], and this purposefully trades on the goodwill associated with [Plaintiff], this is insufficient to state a claim for false designation of origin.” Genometrica Research Inc. v. Gorbovitski, id. at *14. The same should apply here for the same reason: Where there is not even the allegation of the existence of a trademark, there is no false designation of origin, and the second count of the Amended Complaint should be dismissed.
This is the heart of the case, and defendants assert that use on Facebook and on a Facebook widget at the SarahPAC website was “fair use”:
Based on the facts set forth in the Amended Complaint, neither alleged use of the “WTC Flag Raising Photograph” constitutes copyright infringement, because the use described is a fair use….
The Amended Complaint is at pains to categorize the use of the patriotic and sentimental message of defendant’s alleged use of the WTC Flag Raising Photograph as somehow “commercial” so as to get the best possible leverage in this first factor….
It is not the law, however, that wherever a publisher, website or other user of a protected work provides, as some aspect of its operations, an opportunity to contribute funds or even to engage in a transaction, that the use in question is itself transformed into a “commercial use.” …. Under this analysis, the alleged use of a version of the WTC Flag Raising Photograph here is no less fair use than that of Google in its Google Books project, and arguably more, because it cannot be alleged that either defendant is a for-profit enterprise such as Google. As in Authors Guild, moreover, neither defendant sells reproductions or downloads, or even offers them for free, of the work or otherwise “engage[s] in direct commercialization” of the WTC Flag Raising Photograph. Moreover, the use itself – the juxtaposition of a cropped version of the photograph to highlight a message reading, “Never forget” – is entirely non-commercial. It does not urge or suggest making donations, even if a user, motivated in his own right to do so, may eventually find his way to the donation mechanism at www.sarahpac.com….
As the Amended Complaint acknowledges, the WTC Flag Raising Photograph is an iconic depiction of a compelling and unforgettable historical moment. This factor weighs in favor of the fair use defense … Again, application of the legal standard to the facts here leads to a finding favoring the fair use defense, for here too the WTC Flag Raising Photograph was used in reduced form merely “to provide a visual context for the accompanying text,” i.e., the simple message that the attacks of September 11th and the heroism of those whose sacrifices are evoked by an iconic image connected with that infamous day should not be forgotten….
The last statutory fair use factor, the effect of the use upon the potential market for or value of the copyrighted work, obviously favors defendants here, because the Amended Complaint does not even allege that defendants’ utilization of the WTC Flag Raising Photograph on Facebook has had any effect whatsoever on the potential market for or value of that work.
In sum, the use alleged is a fair use because each and every fair use factor, when comparing the allegations of the Amended Complaint in light of the applicable case law, favors a finding of fair use here.
NJMG did not respond to a request for comment. Defendants’ attorney, Ronald Coleman, simply responded that the motion speaks for itself. (Disclosure: Coleman also is legal counsel for Legal Insurrection.)DONATE
Donations tax deductible
to the full extent allowed by law.