In May of 2010, Thomas Privitere and Brian Edwards, a gay couple, hired a photographer to take pictures of the two men in a New York City park. Their favorite photograph displayed the two men kissing and holding hands with the Brooklyn Bridge in the background. The couple liked the picture so much that they posted it on the Internet as their engagement photo.
Cut to Spring of 2011: Public Advocate of the United States, a conservative nonprofit, needed a photograph for a political flyer to take a Republican State Senator from Colorado to task for voting to approve same-sex civil unions. Public Advocate ran across Privitere’s and Edwards’ engagement photograph on the Internet. Presumably, the nonprofit believed Coloradans would find an image of two men innocently and chastely kissing inherently gross, and decided to use the photo for its attack ad. Before doing so, Public Advocate doctored the image – removing the Brooklyn Bridge and replacing it with imagery reminiscent of a Colorado mountaintop.
Unsurprisingly, Privitere, Edwards, and their photographer were not flattered when they discovered that the couple’s engagement photo had been used by a right wing “think tank” to appeal to Colorado voters’ homophobia. Earlier this month, the three filed suit against Public Advocate in federal court for copyright infringement on the photograph and misappropriation of the couple’s likeness.
Public Advocate’s use of the engagement photo should certainly be morally reprehensible to any reasonably tolerant person, and the photographer appears to have a very strong copyright infringement claim against the nonprofit. Public Advocate has no real fair use defense here. The political mailer was not meant to criticize or parody the original photograph. Instead, it was meant to denigrate a politician’s views on same sex marriage or civil unions.
However, were the couple’s rights of publicity violated? That question is a much harder one and could likely swing either way should this case proceed to trial. Rights of publicity laws are generally intended to protect persons from the unauthorized commercial use of their likenesses. For example, Nevada’s rights of publicity laws define “commercial use” as being “for the purposes of advertising, selling, or soliciting the purchase of any product, merchandise, goods, or service.”
Here, Public Advocate has a strong argument that the flyers that it produced were purely political speech protected by the First Amendment. The organization was not attempting to use the photograph for any commonly recognized “commercial” purpose. Rather, it was using the image to advance its objection to homosexual civil union.
On the other hand, Public Advocate’s own website proclaims that some of its primary goals are to provide “strong and vocal opposition” to “[s]ame sex marriage and the furtherance of so-called ‘Gay Rights’” and to decry the “mainstream media’s promotion and glorification of . . . homosexuality.” (Public Advocate is the organization that infamously compared same-sex unions to state-sanctioned bestiality, and claimed that allowing gay men to serve in the Boy Scouts was akin to “being an accessory to the rape of hundreds of boys.”) Its website prominently asks social conservatives for contributions so that it might continue spreading its message to the masses. If a court were to view the political mailer containing the doctored photograph as, in part, a solicitation for increased funding, the requisite “commercial use” may very well be present.