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UPDATED: Judge rules in Delgaudio’s favor in Colorado mailer case

Supervisor Eugene Delgaudio’s nonprofit group, Public Advocate of the United States, sent out this flyer to Republican voters in Colorado in 2012. The flyer contains an altered image of a New Jersey couple’s engagement photo taken by photographer Kristina Hill. Photo courtesy/LGBTQNation
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.

Past coverage:

-"Federal lawsuit filed against Delgaudio’s Public Advocate" -- September 2012

Contact the writer at .(JavaScript must be enabled to view this email address).


delgaudio doesn’t get intellectual - property OR other rights?

Con groups not singled out by IRS, plenty of libs investigated. As it should be to avoid taxes.

Delgaudio is taking most of the money his org gets and pocketing it, talk about a money making scheme. Oh sorry those are “consulting fee”.

If there is any doubt as to why its listed as a hate group simply read the bile it spits out if you can stomach that much stupidity in a sitting.

Satch and David, apparently the chronology is that, based on pushback re the IRS targeting of conservative groups and the FRC domestic terrorism shooting, the FBI made the decision to only list government resources on their website.


When conservative news/blogs noted it and started celebrating, the FBI clarified that yes, they would only list government resources, but maintain the relationship.

I find THAT a bit disturbing, that for appearances’ sake, they would remove the links, but continue without attribution.

Onward and upward, for the most transparent administration in history!  (sound of oceans beginning to fall…)

lol indeed

LOL at the phrase “money-making scheme” in this context. Is that a direct quote from the Sterling Supervisor? Oh, the irony.

I’m surprised, actually, that it took this long for one of his apologists to repeat the false story about the FBI. You can rest assured that the FBI’s working relationship with SPLC and the Anti-Defamation League are as vibrant as ever. They’ve only taken those two organizations off the front page of their website (which now only lists other government agencies) and moved them to a community resources page.

You really should be more judicious about your “news” sources.

Rose don’t believe anything Delgaudio says.  The FBI story is not true.  The FBI moved the reference of their SPLC partnership to the Hate Group page:

The Southern Poverty Law Center reportedly been dumped by the FBI as a resource.  It seems that the organization is not exactly what it is cracked up to be.  Some have even claimed the SPLC was a “money-making scheme.”  Its attacks on anyone or any organization (like Mr. Delgaudio’s) that believed in traditional marriage were branded as hate criminals.  I have lived in Loudoun for a long time.  Mr. Delgaudio has been hounded for years for his beliefs and for the fact that he belongs to the wrong political party.  This is politics at its worse.

I misread yesterday, the copyright case is still moving forward it was the 1A case dismissed.

He is going to lose the copyright case big time. Posting to the web does not make an image public domain and creeps like Delgaudio cannot use it without permission.

I sure hope Delgaudio had to pay to fly out to Colorado for this tiny hearing.  Those flights are expensive.  I hope he gets a significant bill from his attorneys for the representation.  But I am most happy that this trial continues and will certainly reduce the size of Delgaudio’s pocket book. 

I hope we hear more about Delgaudio’s “victory” declaration, especially with expensive mailers and other cash depleting exercises.

This is kind of misleading. Some readers may mistakenly believe that the case was “largely” dismissed.

As disappointing as this split decision is (after all, the plaintiffs are private citizens who were maliciously attacked by a hate group leader to whom they bear no relationship whatsoever), the First Amendment gives us all extremely wide latitude for such noxious behavior. Recall that the hate group headed by the recently departed Fred Phelps, Westboro Baptist “Church,” prevailed at the Supreme Court following an arguably worse attack on the surviving family of a service member killed in action. Many observers found this ruling outrageous, but the First Amendment protected the hate group’s behavior.

What I gather from a reading of the order is that the very same arguments that “Public Advocate” and its co-defendants successfully made against the charge of misappropriation of likeness severely undercut their arguments against the charge of copyright violation. Hence the split decision.

Another interesting case to watch as it moves toward the trial phase.

I believe the story is slightly off. The actual order of the court is this:

The motions are GRANTED to the extent that the First Amendment bars the Plaintiffs’ Colorado state law appropriation of name or likeness tort claim, and that claim is DISMISSED WITH PREJUDICE. The motions are DENIED to the extent that Public Advocate and the Defendants seek dismissal of the Plaintiffs’ copyright infringement claim based on the fair use doctrine.

Seems the tort claims were dismissed, but the copyright claims were not.

If this is not found to violate copyright laws, then, it would seem that every photo on flicker, facebook, etc. would be fair game, without requiring permission or payment, for any political or commercial use. Unless there is a strange loophole, the size of the settlement would seem to be the real issue.

Its not fair use is the point the judge was wrong and we will see this refiled with another charge.

Why isn’t the other picture up? It is a improvement over the original. Their claim is bad faith as the judge just ruled, so to avoid more frivolous lawsuits like this one let them compensate for attorney fees. The same result will happen in the recall but will cost attorney fees which the loser should have to pay.

Fair use is fair use. Supervisor Delgaudio humiliates his own. The young man in the black suit with a bag over his head is his former aide who, most likely, as a condition of his county employment, also worked for Public Advocate.


Tried in CO cty wishing to secede?

Absurd, hate is legal? Copyright & intellectual prop. rts.? delgaudio doesn’t get “w/out permission”?  Appeal?

oranges869 won’t happen, that is only for bad faith cases, they have a fair claim.

Wow talk about getting it wrong. You cannot just use other peoples photos like this. I expect another suit to come out of it with a different copy right claim.

Now it is only fair that they pay for the costs that Delgaudio had to pay!

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