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Same-Sex Couple Loses Suit Over the Unauthorized Political Use of their Wedding Photo:

I blogged about this case last March, when it was filed, and predicted that the plaintiffs would lose. For a factual background, here's plaintiffs' press release:

A $25 million lawsuit was filed today against right-wing front group USA Next and political consulting firm Mark Montini International for stealing an Oregon couple's wedding photo and using it without permission in a high-profile gay-bashing ad designed to drum up support for social security privatization. . . .

The suit alleges that the use of the couple's image without permission constituted an invasion of privacy, was libelous, violated their right of publicity and constituted an intentional infliction of emotional distress.

In one version of the USA Next ad disseminated widely on the Internet in February, and aired repeatedly by television news programs and newspapers nationwide, the couple's image, superimposed with a green checkmark, is side-by-side a picture of a US soldier with a red "X" across it. Below the photos is the phrase "The REAL AARP Agenda."

Last Friday, the district court granted defendants' motion to dismiss, and I'm pleased to say that the court's reasoning was nearly identical to the reasoning I outlined. I might have been wrong, but at least I was wrong in a way that a judge agreed with, which is usually good enough in legal circles ....

Cornellian (mail):
His clerk is probably a VC reader.
1.26.2006 7:35pm
Marcus1 (mail) (www):
I'd suggest that limiting the libel claim merely to the specific statements about the couple unnecessarily undermines the claim.

Anybody in politics knows that you don't actually have to make even an implicit statement about someone's specific views to still very effectively smear them and tarnish their reputation. All you have to do is put them on tv in an extremely negative light. This add, putting this couple up as the evil alternative to supporting our troops, clearly does that. It's called propaganda. A clever marketer could probably do the same thing with pictures of Osama Bin Laden, without even actually implying that the person was a Bin Laden supporter.

The Plaintiffs, in a way, missed the point by trying to say this painted them as anti-troop. It didn't; but realistically, what it did was just as defamatory.

At least that would have been my argument...
1.26.2006 7:53pm
Marcus1 (mail) (www):
How about a similar add that instead put up the choice, "Fight Bin Laden or throw away money on poor people," and then had ominous music and a picture of a smiling homeless person taking a hand out?

It wouldn't imply that he supports Bin Laden. No reasonable person would think that. But isn't it defamatory?
1.26.2006 8:01pm
Nobody Special:
Marcus-

How so? Painting someone in a negative light is not the same as defamation. Defamatory speech needs to be false.
1.26.2006 8:49pm
Marcus1 (mail) (www):
Maybe it depends if they really are the evil alternative to supporting our troops...

I don't know. I liked the invasion of privacy tort more at first; maybe I should have stuck with that. I don't see why the first amendment necessitates allowing this kind of use of someone's picture, if it doesn't necessitate allowing libel and invasion of privacy in general.

They could have had actors do it. Taking real people and maligning them like that, though, I don't see how that's protected speech. This is essentially defamation, even if cleverly it's not demonstrably false.
1.26.2006 9:40pm
Andy (mail) (www):
I haven't been following this case, so I'm curious: did the photographer who took the photo (or the newspaper that originally published it) ever file a copyright infringement suit? Also, did the Portland ACLU chapter file any briefings in this case?
1.26.2006 10:40pm
Mike F.:
I question the conclusion that the ad was not commercial in nature. If you visit the USA Next site you are asked for donations and there is also a link to the USA Next bookstore where one can purchase any of several books by authors with a right-wing agenda. I'm not sure if USA Next is a non-profit or not, but one interest group for seniors campaigning against another interest group for seniors (presumably for members and finacial support) doesn't seem to be a traditional political ad, or if it does, in my opinion it shouldn't.
1.27.2006 4:09pm
Ryan Waxx (mail):
To my eyes, it doesn't appear that the gay couple is being portrayed as being the alternative to supporting the troops.

Look at the reverse. Do you think the ad is claiming that supporting the troops means you have to reject gay marriage? Of course not.

So it seems that the ad is linking each of the issues to the AARP, but NOT linking the issues to each other. They don't go together in any concievable way (well maybe gays in the military is a concievable crossover, but it's pretty clear from the wedding scene that the ad makers are referring to gay marriage, not gays in the military).
1.30.2006 6:02am