Judge upholds First Amendment right to use gay couple’s photo in political mailers

A federal judge in Denver ruled that a political group opposed to same-sex marriage was within its First Amendment rights to use a photo of a gay couple kissing on political mailers circulated in 2012.

Judge Wiley Daniel partially granted a motion to dismiss a lawsuit by Brian Edwards and Thomas Privitere, a New Jersey couple whose engagement photo was used on mailers circulated by Public Advocate, a group opposed to gay marriage.

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The mailers were sent to two districts in Colorado to oppose Republican candidates who supported civil unions or same-sex marriages.

The men and their wedding photographer, Kristina Hill, sued over copyright infringement and a tort claim, since the image was used without their permission. The couple originally published the photo online, on a blog where the couple announced their wedding plans.

The defendants, including the National Association for Gun Rights and Rocky Mountain Gun Owners and their representatives, argued that they had a First Amendment right to use Edwards’ and Privitere’s photo, which was altered to make the background look like it was taken in Colorado. The mailers included captions questioning the candidates’ “idea of ‘family values.’”

The defendants also claimed that the doctrine of “fair use” protected them from a copyright infringement claim.

On Monday, Judge Daniel agreed in part, finding that the mailer was noncommercial and that its message opposing same-sex marriages “concerns a matter that is both newsworthy or of legitimate public concern.”

Therefore, it was protected under the First Amendment, he decided. Daniel dismissed that portion of the claim with prejudice.

“This dismissal with prejudice is a tremendous victory for Public Advocate’s mission to speak freely on behalf of traditional marriage,” said Public Advocate President Eugene Delgaudio, in a statement posted on the group’s website. “We continue to believe we have the right to defend traditional marriage and will redouble our efforts to oppose homosexual marriage.”

However, Daniel did not dismiss the claim of copyright infringement, rejecting the defendants’ argument that lifting a photo off the Internet and superimposing it onto a new background falls under the doctrine of fair use.

Fair use arguments can be upheld if original works are used for educational purposes or if it’s “highly transformative,” meaning that it had been altered so much that it takes on “new expression, meaning or message,” according to Daniel’s order.

The judge found that neither was the case in this instance and refused to dismiss the copyright claim.

Southern Poverty Law Center, which represents the plaintiffs, did not immediately respond to a message from The Daily Caller News Foundation.

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