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Hey @SenJohnMcCain, tweeting iconic photo of firefighters at Ground Zero could get you sued

Hey @SenJohnMcCain, tweeting iconic photo of firefighters at Ground Zero could get you sued

Remember the copyright lawsuit against Sarah Palin? It’s still percolating through the system.

I know, I know.

You just were being patriotic. You just were honoring the fallen and the surviving heroes of the World Trade Center.

You had good intentions. You didn’t profit from it.

Country first!

That’s what Sarah Palin or whoever runs her Facebook page likely was thinking when, on September 11, 2013, the following image was posted:

Sarah Palin Facebook Page Three Firefighters Image

Then came the lawyers with a lawsuit.

Because the image allegedly is copyrighted. For those who don’t remember, check out my original post from September 16, 2013, Palin firefighter copyright lawsuit Complaint — no proof of “fundraising” off photo:

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….

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, includingThe 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).

It always has been a mystery why the quick lawsuit (filed September 14), particularly since there was no obvious attempt to profit from its use. As I explained in that original post, the accusation of profit, at least as alleged in the Complaint, seemed weak at best:

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, a copy of which is annexed as Exhibit C, and, 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.

I always suspected the lawsuit was driven by the fact that it was Palin who posted it. In 2013, Sarah Palin’s political star was a lot higher than it is today, and she had been the target of liberal venom since the moment her nomination by John McCain to be his VP running mate was announced.

I continued to follow the case through the PACER electronic federal online docket, through the time the lawsuit was transferred to New Jersey federal court:

From time to time, on no set schedule, I’ll check in on the PACER docket. The lawsuit progress is almost as bizarre as suing someone for being patriotic.

There appears to have been a settlement reached, or so Palin’s lawyer Ron Coleman (who also is Legal Insurrection’s lawyer) asserts in court filings accusing NJMG of reneging. NJMG, for its part, denies that a final and binding agreement was reached. The issue is before the Judge, and has been sitting since December 2015. Emails to counsel for all parties seeking a status update were not returned.

I had pretty much forgotten about the lawsuit until I saw that Senator John McCain used the photo is a tweet today:

I have seen many, many other people post that photo today, with all the best intentions. The vast majority won’t be sued, but selective targets might be.

Will McCain be sued? That would be interesting.

I emailed the lawyers for NJMG, now known as 4th Edition, Inc. (emphasis added):

I previously communicated with you and have written about this dispute.

I was reminded of it today when I saw Senator John McCain use the photo in a tweet,

From PACER, it looks like the lawsuit still is pending, and there is a dispute as to whether there was an enforceable settlement. Can you confirm that?

Is there anything else about this dispute you care to comment on?

How many other lawsuits have been filed over this photo?

Do you have any comment on Senator McCain using the photo? Do you plan on sending a cease and desist, and/or suing, Senator McCain?

Appreciate a prompt response, as I may write an update post on this later today.

As of this writing, no response.

Maybe they will sue McCain. I’d love to see that not because I want him to be sued, but because his reaction would be priceless.


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I voted for McCain in 08 and would love for vote him again this year. I mean a Republican presidential candidate who tweets a commemorative note on 9/11 (and who wasn’t a total dick about it at the time) — Wow!

Ah, but Sarah did it, so it must be Baad.

Not for profit and fair use. Nothing to stand on in the Palin case, nothing to sue McCain over.

No mystery. The Record, published by NJMG, is a relentlessly liberal newspaper. If the big O had used the photo, there would have been no action.

If the photo was attached to the court filing – a public record – is it now a public document?

    Ragspierre in reply to ss396. | September 12, 2016 at 4:54 pm

    Not likely. This is why you have protective orders in discovery and “in camera” inspection of evidence by the court.