The iconic “Raising the Flag at Ground Zero” photo of firemen raising an American flag on September 11, 2001, which appeared on the cover of The Record newspaper and other newspapers on September 12, is at the heart of a lawsuit filed in Federal District Court in New York. The Complaint, filed by the owner of the copyright in the photograph, claims copyright infringement and false designation of origin for the unauthorized reproduction of portions of the photograph on the website for Sarah Palin’sfederally registered political action committee, www.sarahpac.com,  and on her Facebook page,www.facebook.com/sarahpalin.

The suit claims that the photograph is being used by Palin and the other Defendants to raise money for her political action committee. The PAC website solicits and accepts financial contributions from supporters and accepts requests for Sarah Palin to make paid appearances at events, including media and campaign events, and Palin’s Facebook page provides links to this website. The owner of the copyright in the photograph also alleges that the use of the photo falsely designates the origin of the photograph and that its appearance on the PAC website and Palin’s Facebook page is likely to cause confusion mistake or deception as to the source or ownership of the photograph, falsely representing that Palin or the PAC owns the copyright when they do not.

Defendants have responded to the Complaint by moving to dismiss it on grounds of improper venue, failure to state a viable claim for false designation of origin, and fair use of the copyrighted photograph.  Defendants’ content that their alleged “commercial use” is no different from the conduct of Google in its Google Books Project, which was recently held by the same court in which suit was filed to favor a finding of fair use despite Google’s general commercial focus. They argue further that since the photograph in question is “an iconic depiction of a compelling and unforgettable historic moment” that there is a public interest and demand for such newsworthy photographs, making its reproduction a fair use. As to the remaining fair use factors, it is argued that the cropped and altered version of the original photograph was used only “to provide a visual context for the accompanying text” conveying the message that the day should not be forgotten, and that the use has had no effect on the market for or value of the photograph itself.

Palin is not the first politician to be sued for copyright infringement in connection with political activities. As we have reported to you in the past, politicians in recent and not so recent campaigns have also been brought to task for the unauthorized use of copyrighted works.

It remains to be seen how this issue will be decided, and we will report back to you with all further developments.