A short article I wrote for the Journal of Intellectual Property Law & Practice has just been published. The article is about an interesting case, Kristina Hill, Brian Edwards and Thomas Privitere v Public Advocate of the United States, Civil Action No. 12-cv-02550-WYD-KMT.
A federal district judge dismissed the right of publicity claim of a couple whose engagement photograph had been used without permission by an organization to promote anti-gay speech, but the copyright claim of the photographer who took the picture was allowed to proceed.
I had also blogged about this case for the IPKat blog, which led to the publication of this article. I had also blogged about it two years ago for the Digital Media Law Project blog.
One can regret that the right of publicity claim was dismissed. One can regret it first because knowing that a couple has now to live with the fact that their engagement picture has been used to promote a message of intolerance towards the very group to which they belong is disturbing. One can also regret it from a legal point of view. The right of publicity has a double nature as it protects the commercial value of one’s personality, and is thus both a privacy right and a property right. The Colorado Supreme Court noted in the Joe Dickerson & Associates, LLC v. Dittmar case cited by Judge Daniel that “[t]he market value of the plaintiff’s identity is unrelated to the question of whether she suffered mental anguish as a result of the alleged wrongful appropriation” thus signaling that the Colorado right of publicity protects privacy, regardless of the commercial value of one’s persona.
The First Amendment defense permitted the use of the photograph and thus free speech weighed heavier in the balance than the couple’s privacy. But fair use, which also protects free speech, was not strong enough a defense to have the copyright infringement claim dismissed. The photographer’s intellectual property rights weighed heavier on the balance than free speech, particularly because the use was not transformative enough. Therefore, the all-mighty First Amendment ended up protecting, well, not-so-much-speech, to the detriment of the privacy rights of the aggrieved couple.
However, even though the way defendants expressed their ideas was not creative, their speech participated nevertheless in the current general civil rights debate of what should be considered a family in the Twenty-First century. Lets’ hope that, along the road, learning about this case will make at least some people realize that gay marriage is, well, marriage, an institution which should be celebrated, not hated.
Image is Cold hearted courtesy of Flick user jillyspoon under a CC BY-ND 2.0 license.
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