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A gay couple from New Jersey has sued a political group that used their engagement photo in an anti-gay attack ad in Colorado. But so far, the result in the courts has been mixed.
A federal judge has dismissed part of the couple's case against Public Advocate of the United States, a Virginia-based company that created a mailer against a Colorado political candidate using a doctored version of their engagement photo, reports The Denver Post.
Why did the couple have part of their case dismissed, and what can they do now?
Appropriation Claim Fails
Brian Edwards and Thomas Privitare of Montclair, New Jersey, filed suit against Public Advocate in 2012 after finding out that an engagement picture that showed them kissing had been used in a campaign against Colorado State Sen. Jean White. The couple and their photographer sued the group in federal court under appropriation and copyright infringement theories.
Appropriation occurs when a person's name or image is used without permission by another, typically for commercial benefit. Higher-profile appropriation cases typically involve celebrities who are unwittingly included in ads for products they never endorsed.
But you don't have to be famous in order to have your image unlawfully appropriated. Edwards and Privitare claimed that their engagement photo -- with New York City's skyline in the background -- was doctored by Public Advocate to have a snowy "Colorado" backdrop. The mailer questioned whether the scene was White's idea of "family values."
Unfortunately for the couple, U.S. District Court Judge Wiley Daniel found that since the photo's use was "noncommercial and a matter of legitimate public concern," Public Advocate could legally use it without their permission.
The First Amendment often allows privacy rights to take a back seat to free speech when it is newsworthy or a matter of legitimate "public concern," and it appears that, according to Judge Daniel's ruling, gay couples (and by extension Edwards and Privitare) are a matter of public concern for Coloradans.
The federal court did not dismiss the couple's copyright infringement claim, although the Post reports it will not be a "high dollar" case. Another option would be to appeal Judge Daniel's ruling to the Tenth Circuit, which would review Daniel's application of privacy and free speech laws.
It is a daunting future where people may be unwittingly featured in political ads, simply for having a relationship with a person of their choosing. You may want to consult an experienced personal injury attorney if you're concerned about your photos being used in such a way.