Loudoun Supervisor Eugene Delgaudio (R-Sterling) and his controversial conservative lobbying group Public Advocate of the United States will likely not be forced to pay financial damages for the unauthorized and doctored use of a gay couple's photo in campaign literature.
A federal district court judge in Colorado, where the campaign flyers were used in state elections in 2012, ruled March 31 largely in favor of Public Advocate, finding that it had no commercial purpose in using the photograph because “it was involved in an important exercise of its First Amendment rights with respect to a controversial issue in the context of an election,” according to Delgaudio.
"Public Advocate['s] actions are evidence that same-sex marriage can at the very least be considered as relating to political concerns of the community. Therefore, I find that the mailers reasonably relate to a matter of public concern," Senior Judge Wiley Y. Daniel stated.
Public Advocate of the United States, which is designated by the Southern Poverty Law Center an anti-gay hate group, funded the flyers to voters of two Colorado state Senate races in 2012.
The mailers used a New Jersey same-sex couple’s wedding photo without the couple's permission. The original picture by photographer Kristina Hill features Thomas Edwards and Brian Privitere holding hands and kissing with New York City in the backdrop. The couple posted the image on their wedding blog.
One of the altered versions uses the same image of Edwards and Privitere but changes the backdrop to a snowy setting with pine trees and the verbiage, “State Senator Jean White’s idea of ‘Family Values?’” A Public Advocate return address was included on the flyer.
White was squaring off against another Republican for her party’s nomination.
The same image of Edwards and Privitere was used by Public Advocate in another Colorado race against Jeffrey Hare, who at the time was a Republican candidate for Colorado’s House District 48.
The Southern Poverty Law Center, a civil rights advocacy organization, is assisting the plaintiffs -- Edwards, Privitere and Hill -- in the matter. The plaintiffs argued that the defendants’ actions constituted copyright infringement and unlawful appropriation of Edwards and Privitere’s name and likeness.
In June 2013 Public Advocate filed a motion to dismiss, arguing that the Free Speech Clause of the First Amendment to the Constitution bars the plaintiffs’ appropriation of name or likeness tort claim, and, secondly, the fair use doctrine bars the plaintiffs’ copyright infringement claim.
Commenting on the favorable ruling, Delgaudio said, "This dismissal with prejudice is a tremendous victory for Public Advocate's mission to speak freely on behalf of traditional marriage. We continue to believe we have the right to defend traditional marriage and will redouble our efforts to oppose homosexual marriage."
An attorney with the Southern Poverty Law Center said his group is “disappointed with the court’s legal ruling on the misappropriation claim and remains convinced that the misuse of our clients’ private engagement photo was wrong.”
The attorney, Anjali Nair, found a bright spot in the judge's ruling. Daniel denied Delgaudio's motion “to the extent that Public Advocacy and the Defendants seek dismissal of the Plaintiffs' copyright infringement claim based on the fair use doctrine.”
Said Nair, “We are happy the court has ruled that the defendants’ unauthorized use of the engagement photo may violate the copyright laws and that the copyright claim may proceed to trial.”
This story has been updated from an earlier version.
-"Federal lawsuit filed against Delgaudio’s Public Advocate" -- September 2012