We previously have written about the copyright and trademark lawsuit by North Jersey Media Group against Sarah Palin and SarahPAC over a single use by Palin in a 9/11 Facebook post of a photo of fireman raising the U.S. Flag at Ground Zero.
We also previously noted that the claim in plaintiff’s papers that Palin used the image for fundraising seemed to be a real stretch (at best). There was no evidence attached to the Complaint showing any specific fundraising. Plaintiff’s claim appears to be that anything that takes place in Palin’s name or at SarahPAC constitutes fundraising.
Palin and SarahPAC moved to dismiss the case for faiture to state a legal claim, or alternatively, to transfer the case to Alaska since New York had no connection to the dispute.
In an Order filed today, the Judge granted the motion to transfer, but to New Jersey where NJMG is headquartered. Given the transfer, the Judge deferred ruling on the merits of the motion to dismiss to whichever federal judge gets assigned in New Jersey.
It will be interesting to see if NJMG continues to fight the lawsuit, which makes no sense given that the photo clearly was not used for fundraising and was taken down quickly. Indeed, as previously noted, there is an issue as to whether Palin and SarahPAC even received actual notice of the takedown demand prior to the filing of the lawsuit just two days after the Facebook post was made.
Here is the substantive text of the Order (embedded below):
Defendants move, alternatively, to dismiss or to transfer this case to another district where it could have been brought. This case is transferred to the U.S. District Court for the District ofNew Jersey.
Plaintiff is a New Jersey corporation, publishing local newspapers in New Jersey. Defendants are a citizen of Alaska and a federally registered political actioncommittee (“PAC”) whose principal place of business is in northern Virginia.
Plaintiffs allege copyright infringement of a copyrighted photograph and a violation of the Lanham Act. There is no indication of any substantial activities in this state or district.
The most convenient forum is where plaintiff claims injury, New Jersey. If defendants violated the law, they did so nationally and one situs is as convenient as another. The district of Alaska, preferred by defendants, is not a convenient forum nor is the district of Virginia. Hence this case will be transferred to the district of New Jersey. See D.H Blair & Co., Inc. et al v. Gottdiener, 462 F.3d 95, 106-07 (2d Cir. 2006). The judge to whom this case is assigned can then determine the substantive sufficiency of defendant’s motion.
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