A local non-profit – one classified as a hate group by the Southern Poverty Law Center – based in Falls Church may find themselves in hot water for their use of a New Jersey couple’s wedding photo in a Colorado political attack ad. The photo, originally taken of Brian Edwards and Tom Privitere in New York, was photoshopped to move the couple from New York to a snowy idyll representing Colorado, to attack Republican State Senator Jean White, who voted for same sex marriage in the last legislative session. The photo was used entirely without permission, and the photographer and the subjects are currently seeking legal action.

Public Advocate of the United States (PA-USA) ran the ad in a couple different forms ahead of last Tuesday’s election in Colorado. Based in Falls Church, and run by Republican Loudoun County Supervisor Eugene Delgaudio, the group, despite its innocuous name, works to fight against LGBT issues throughout the US. Delgaudio has made a name for himself locally as the crusader-in-chief against gay rights. Delgaudio has made some fairly hilarious and peculiar statements in this vein, suggesting that TSA patdowns “promote the homosexual agenda“, and that anti-bullying laws threaten religious freedom, while also suggesting that a Tampa pirate festival has been overrun by militant homosexuals.

Delgaudio defended the use of the photograph to the Denver Post, “We are a non-profit and make no money from any photos, postings, references, parodies, street theater or educational materials.”  That may not help them, but it also might. The photo that PA-USA used isn’t one that they had purchased the rights to use – they just downloaded it from a wedding site and started up photoshop.  That doesn’t seem to be a legitimate application of the Fair Use Doctrine that encompasses the exception to copyright law. But, as we’re not lawyers here at We Love DC, we thought we’d look up a friend of ours who is.

As we’ve done in the past, we talked with our media law go-to attorney Kevin M. Goldberg of Fletcher, Heald & Hildreth in Arlington:

In this case you have a noncommercial work being used in its entirety for what may or may not be a noncommercial purpose (more on that in a second).  Since there was probably no real market for the photo in the first place, there’s no effect on the market or tarnishing of its economic value.  We have to focus – and Public Advocate of the United States is focusing its justification  on – the fact that this is a noncommercial use.  They claim that they’re not making money off the photo and that they’re engaged in a “transformative” use by placing it in a difference context for commentary, criticism, parody, i.e., First Amendment protected purposes. 

I think they’ve got a pretty decent argument in that regard.  This is sort of a marriage (pun intended) of two major controversies we’ve seen in recent years:  the Shepherd Fairey “Hope” poster and the use of songs by artists like Jackson Browne, Heart and David Byrne by the political campaigns of John McCain, Sarah Palin and Charlie Crist, respectively.  Of course, we’ve never gotten a true ruling from any court in any of these cases and there are even slight differences here, because the original AP photo and songs in each of those instances were commercial in nature.  So,  even though those cases presented a much higher likelihood that the use was not fair, they weren’t cut or dried one way or the other (and there was a very good likelihood in my mind that Fairey would win if he hadn’t gone and done all sorts of unsavory things leading up to the actual litigation).   The fact that the original photo was clearly noncommercial here tips this toward fair use.

Of course, all that goes out the window if the wedding website where the photo originally appears is commercial in nature, has any commercial overtones or explicitly contains licensing guidance in its terms of use or permissions among each picture.  Not having seen the site in question or had the opportunity review its terms, or having seen the original photo on that site, I can’t do more than speculate at this time. 

It seems unfair for Delgaudio and the PA-USA to just swoop in, take a couple’s engagement photo, and photoshop it to insult them, especially when they didn’t pay for the rights to use or alter the image, but it also appears that they may have a leg to stand on in regards to the legal issue.

Edwards & Privitere are retaining counsel, and this may yet be settled in the courts, and they may not even be the right people to bring the suit.

PA-USA may be correct that they don’t make any money from the posting of their materials, they’re certainly not a small organization, and somehow they still made $71,000+ in Royalties in 2010. According to their 2010 Form 990, required by the IRS, the organization received over $1.2M in grants and contributions, and paid Delgaudio – through his firm “Delgaudio & Associates” – over $150,000 in compensation.

Sleazy or not, this one could go either way.

Tom Bridge

I live and work in the District of Columbia. I write at We Love DC, a blog I helped start, I work at Technolutionary, a company I helped start, and I’m happy doing both. I enjoy watching baseball, cooking, and gardening. I grow a mean pepper, keep a clean scorebook, and wash the dishes when I’m done. Read Why I Love DC.