Hill et al v. Public Advocate of the United States
ORDER that Public Advocates Motion To Dismiss Plaintiffs First Amended Complaint ECF No. 101 and NAGR, Rocky Mountain, ODell, Andrew Brown, and Dudley Browns Motion To Dismiss The First Amended Complaint ECF No. 106 are GRANTED IN PART and DENIED IN PART. 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, by Judge Wiley Y. Daniel on 3/31/2014.(evana, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 12-cv-02550-WYD-KMT
BRIAN EDWARDS; and,
PUBLIC ADVOCATE OF THE UNITED STATES;
NATIONAL ASSOCIATION FOR GUN RIGHTS;
ROCKY MOUNTAIN GUN OWNERS;
ANDREW BROWN; and,
THIS MATTER is before the Court on defendant, Public Advocate of the United
States’ Motion To Dismiss Plaintiffs’ First Amended Complaint [ECF No. 101] and
defendants, National Association for Gun Rights, Rocky Mountain Gun Owners, Lucius
O’Dell, Andrew Brown, and Dudley Brown’s Motion To Dismiss The First Amended
Complaint [ECF No. 106]. For the reasons stated below, the motions are GRANTED IN
PART and DENIED IN PART.
On May 29, 2013, plaintiffs, Kristina Hill, Brian Edwards, and Thomas Privitere
(collectively “the Plaintiffs”) filed their First Amended Complaint [ECF No. 92] asserting
a copyright infringement claim pursuant to the Copyright Act, 17 U.S.C. § 101, et seq.,
against defendants, Public Advocate of the United States (“Public Advocate”), National
Association for Gun Rights (“NAGR”), Rocky Mountain Gun Owners (“Rocky
Mountain”), Lucius O’Dell, Andrew Brown, and Dudley Brown (collectively “the
Defendants”), and asserting a Colorado state law appropriation of name or likeness tort
claim against Public Advocate and Rocky Mountain.
Edwards and Privitere are a homosexual, married couple living in West Orange,
New Jersey. Hill is Edwards’ college friend and a professional wedding photographer.
Edwards and Privitere became engaged on December 7, 2009, and were married in a
civil ceremony on October 17, 2010. In January 2010, they started a blog to celebrate
their engagement and disseminate information regarding their upcoming marriage. In
May 2010, Edwards and Privitere hired Hill to take engagement photos. One
engagement photo depicts Edwards and Privitere holding hands and kissing each other
on the lips in a park next to the East River in New York City (“the photo”). ECF No. 92,
p. 3. Edwards and Privitere are in the foreground and in the background the viewer can
see the historic Brooklyn Bridge and skyscrapers in downtown/lower Manhattan, New
York City, New York. With Hill’s permission, Edwards and Privitere posted the photo
on their blog.
Public Advocate opposes “[s]ame sex marriage and the furtherance of so called
‘Gay Rights.’” See, About Us, http://www.publicadvocateusa.org/about/. In the Spring of
2012, approximately 3,000 Colorado residents received a political advertisement in
which the portion of the photo depicting Edwards and Privitere kissing was
superimposed on a mailer with snow-covered pine trees in the background and a
caption reading, “State Senator Jean White’s Idea Of ‘Family Values?’” ECF No. 92, p.
4. The mailer refers to Jean White, Republican State Senator for Colorado’s 8th
District. At the time the mailer was issued, White was in a primary race against another
Republican for the 8th District’s Senate seat and White had supported a bill that would
allow same-sex couples to enter into civil unions. On the back of the mailer, Public
Advocate is listed as the sender and the mailer includes Public Advocate’s physical
address and web address. Around that same time, approximately 4,400 Colorado
residents received a different political advertisement in which the same portion of the
photo depicting Edwards and Privitere kissing was superimposed on a mailer with white
clouds in the background and a caption reading, “Jeffrey Hare’s Vision For Weld
County?” ECF No. 92, p. 5. The mailer refers to Jeffrey Hare, who at the time was a
Republican candidate for Colorado’s House District 48 seat and supported same-sex
marriage. As with the mailer regarding Senator Jean White, Public Advocate is listed as
the sender and the mailer includes Public Advocate’s physical address and web
The Plaintiffs allege that while both mailers only list Public Advocate as the
sender, the mailers were a joint project between Public Advocate, NAGR, and Rocky
Mountain. The Plaintiffs allege that Dudley Brown, Rocky Mountain’s Executive Director
and NAGR’s Executive Vice President, O’Dell, NAGR’s Director of Operations, and
Andrew Brown, a member of NAGR’s Creative Department, created the mailers and
coordinated their distribution. The Plaintiffs further allege that: (1) Hill owns a
registered copyright for the photo; (2) the Defendants neither requested nor received
authorization to use the photo; and, (3) the mailers do not provide a photo credit to Hill.
The Plaintiffs argue that the Defendants’ actions constitute copyright infringement and
unlawful appropriation of Edwards and Privitere’s name and likeness.
On June 26, 2013, Public Advocate filed a Motion To Dismiss [ECF No. 101]
arguing that: (1) the Free Speech Clause of the First Amendment to the Constitution of
the United States bars the Plaintiffs’ appropriation of name or likeness tort claim; and,
(2) the fair use doctrine bars the Plaintiffs’ copyright infringement claim. On July 26,
2013, Andrew and Dudley Brown, NAGR, O’Dell, and Rocky Mountain filed a Motion To
Dismiss First Amended Complaint [ECF No. 107] presenting similar arguments and also
stating that New Jersey law governs the Plaintiffs’ appropriation of name or likeness tort
A. Legal Standard for a Motion to Dismiss Pursuant to FEDERAL RULE of CIVIL
FED. R. CIV. P. 12(b)(6) provides that a defendant may move to dismiss a claim
for “failure to state a claim upon which relief can be granted.” “The court’s function on a
Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at
trial, but to assess whether the plaintiff’s complain alone is legally sufficient to state a
claim for which relief may be granted.” Dubbs v. Head Start, Inc.. 336 F.3d 1194, 1201
(10th Cir. 2003) (citations and quotation marks omitted). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.
Ct. 1937 (2007).
In ruling on a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6), I “‘must
accept all the well-pleaded allegations of the complaint as true and construe them in the
light most favorable to the plaintiff.’” David v. City and County of Denver, 101 F.3d 1344,
1352 (10th Cir. 1996), cert. denied, 522 S.Ct. 858 (1997) (citations omitted). The plaintiff
“must ‘nudge [his] claims across the line from conceivable to plausible.’” Dennis v.
Watco Co., Inc., 631 F.3d 1303, 1305 (10th Cir. 2011) (quoting Bell Atl. Corp. v.
Twombly, 550 U,S, 544, 570 (2007)). Conclusory allegations are not sufficient to survive
a motion to dismiss. Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th Cir. 2009); see
also Twombly, 550 U.S. at 546 (2007) (The plaintiff’s burden “requires more than labels
and conclusion, and a formulaic recitation of the elements of the cause of action will not
do”). General allegations “encompass[ing] a wide swath of conduct, much of it innocent”
will fail to state a claim. Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008).
B. Plaintiffs’ Appropriation of Name or Likeness Tort Claim
The Plaintiffs assert this claim against Public Advocate and Rocky Mountain.
Plaintiffs asserted this claim pursuant to Colorado law and Public Advocate couched its
opposition to this claim under Colorado law. However, Rocky Mountain argues that
New Jersey tort law governs this claim. Because there is dispute as to whether
Colorado or New Jersey law applies, it is necessary to undergo a choice of law analysis.
1. Choice of Law
This Court has federal question subject matter jurisdiction over the Plaintiffs’
copyright infringement claim under the Copyright Act because it arises “under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. This Court has
supplemental subject matter jurisdiction over the Plaintiffs’ state law appropriation of
name or likeness tort claim because it is “so related” to the copyright infringement claim
“that they form part of the same case or controversy . . . ” 28 U.S.C. § 1367(a). When a
federal district court exercises supplemental subject matter jurisdiction over a state law
claim, it applies the choice of law rules of the forum state. Bancoklahoma Mortg. Corp.
v. Capital Title Co., 194 F.3d 1089, 1103 (10th Cir. 1999) (citing Glennon v. Dean Witter
Reynolds, Inc., 83 F.3d 132, 136 (6th Cir. 1996)).
The Colorado Supreme Court has stated that the choice of law standard used to
determine what state law applies in a multi-state tort action is “the most significant
relationship to the occurrence and parties test expressed in Restatement (Second) of
the Conflicts of Laws §§ 145, 171 (1971).”1 AE, Inc. v. Goodyear Tire & Rubber Co.,
168 P.3d 507, 508 (Colo. 2007) (en banc). Pursuant to § 145, a court takes into
consideration the following factors when determining what state law applies: (1) the
place of injury; (2) the place where the conduct causing the injury occurred; (3) the
domicile, residence, nationality, place of incorporation and place of business of the
parties; and, (4) the place where the relationship, if any, between the parties is
centered. AE, Inc., 168 P.3d at 510.
a. Place of Injury
The Plaintiffs admit that they were injured in New Jersey. ECF No. 109, p. 10, ¶
4. However, the Plaintiffs state that in this specific context, the fact that they were
injured in New Jersey is not dispositive. The Plaintiffs rely on Elvig v. Nintendo of Am.,
Inc., 696 F. Supp. 2d 1207 (D. Colo. Mar. 8, 2010), for the proposition that when the
place of injury “is simply fortuitous, having little relation to the occurrence and the
parties with respect to the particular issue, the place of injury is not accorded
significance.” ECF No. 109, p. 10, ¶ 4 (internal quotation marks omitted) (quoting Elvig,
696 F. Supp. 2d at 1210-11). Elvig did not involve a privacy tort, as is the case here.
Section 145 is used to determine the applicable state law and § 171 is used to determine the measure
Because the place of injury regarding privacy torts is not always clearly ascertainable in
comparison to other torts, I do not find the statement cited to in Elvig dispositive.
It is undisputed that Edwards and Privitere suffered injury in New Jersey.
However, Edwards and Privitere also suffered injury in Colorado, the place where
approximately 7,400 mailers were distributed. The mere fact that Edwards and Privitere
were not physically present in Colorado during the distribution of mailers does not
automatically preclude a finding that they suffered injury in Colorado. It is
counterintuitive to state that Edwards and Privitere did not suffer injury in Colorado
when approximately 7,400 Colorado residents received mailers mocking Edwards and
Privitere’s sexual preference in an attempt to influence state elections. Thus, I find that
Edwards and Privitere sustained injury in both Colorado and New Jersey and this factor
b. Place Where the Conduct Causing the Injury Occurred
Taking the allegations in the First Amended Complaint [ECF No. 92] as true, as I
must at this stage of the proceedings, Andrew Brown, Dudley Brown, and O’Dell played
a significant role in preparing the mailers and all are alleged to reside in Colorado. See
ECF No. 92, p. 8, ¶ 30 and p. 9, ¶¶ 31-32. Spectrum Marketing Companies, Inc.
(“Spectrum”), a New Hampshire company, also played a role in preparing the mailers as
the Plaintiffs alleged that “O’Dell coordinated the logistics of printing and distributing the
Mailers with Spectrum . . . ” Id. at p. 14, ¶ 60. Thus, I find that the conduct causing the
injury occurred in Colorado and New Hampshire. Because the choice of law dispute is
between Colorado and New Jersey and because no conduct causing the injury occurred
in New Jersey, this factor favors application of Colorado state tort law.
c. Domicile, Residence, Nationality, Place of Incorporation and Place
of Business of the Parties
According the Plaintiffs’ allegations: (1) Edwards and Privitere are New Jersey
residents; (2) Public Advocate is a Washington, D.C. corporation with its principal place
of business in Virginia; and, (3) Rocky Mountain is Colorado corporation with its
principal place of business in Colorado. This factor is neutral.
d. Place Where the Relationship, If Any, Between the Parties is
The only relationship between Edwards and Privitere and Public Advocate and
Rocky Mountain is that Edwards and Privitere are victims of the alleged tort. Thus, this
factor is neutral.
Based on my analysis of the factors stated in RESTATEMENT (Second) of the
CONFLICTS of LAWS § 145, I find that Colorado has the most significant relationship to
the occurrence and parties. Edwards and Privitere sustained injury in Colorado and
significant acts in preparing the mailers occurred in Colorado via Andrew Brown, Dudley
Brown, and O’Dell. The only relationship New Jersey has with this action is that
Edwards and Privitere reside there and sustained injury there. Thus, Colorado has the
most significant relationship to the occurrence and the parties and Colorado state tort
law will apply.2
The Plaintiffs present an argument for application of Colorado state tort law based on § 152 of the
RESTATEMENT. I need not address this argument and express no opinion as to its merits because I find
that pursuant to my § 145 analysis, Colorado has the most significant relationship to the occurrence and
2. The Tort
In order to prevail on a Colorado state law tort claim for appropriation of name or
likeness, a plaintiff must establish: “(1) the defendant used the plaintiff’s name or
likeness; (2) the use of the plaintiff’s name or likeness was for the defendant’s own
purposes or benefit, commercially or otherwise; (3) the plaintiff suffered damages; and
(4) the defendant caused the damages incurred.” Joe Dickerson & Assocs., L.L.C. v.
Dittmar, 34 P.3d 995, 997 (Colo. 2001). A plaintiff will not prevail on this claim if a
“defendant’s use of the plaintiff’s name and likeness is privileged under the First
Amendment.” Id. Whether a defendant’s use of a plaintiff’s name or likeness is
privileged under the First Amendment is a question of law. Id. at 1003.
a. Whether the Defendants’ Use of the Plaintiffs’ Name or
Likeness is Privileged Under the First Amendment
Public Advocate and Rocky Mountain argue that the First Amendment’s Free
Speech Clause bars the Plaintiffs’ tort claim.
The First Amendment’s Free Speech Clause states that “Congress shall make no
law . . . abridging the freedom of speech . . .” U.S. Const. amend. I. The Supreme Court
of the United States has held that the Free Speech Clause “can serve as a defense in
state tort suits . . .” Snyder v. Phelps, 131 S. Ct. 1207, 1215 (2011) (citing Hustler
Magazine, Inc. v. Falwell, 485 U.S. 46, 50-51 (1988)). Regarding a First Amendment
defense in the context of an appropriation of name or likeness tort claim, the Colorado
Supreme Court has stated that, “there is a First Amendment privilege that permits the
use of a plaintiff’s name or likeness when that use is made in the context of, and
reasonably relates to, a publication concerning a matter that is newsworthy or of
legitimate public concern.” Joe Dickerson & Assocs., L.L.C., 34 P.3d at 1003 (citations
omitted). “In many situations, however, it is not altogether clear whether a particular
use of person’s name or likeness is made for the purpose of communicating news or for
the purpose of marketing a product or service.” Id. “To resolve this question, courts
must determine whether the character of the publication is primarily noncommercial, in
which case the privilege will apply, or primarily commercial, in which case the privilege
will not apply.” Id. (citing Tellado v. Time-Life Books, Inc., 643 F. Supp. 904, 909-10 (D.
N.J. Sept. 3, 1986)).
Pursuant to the Colorado Supreme Court’s pronouncement in Joe Dickerson &
Assocs., L.L.C., I must determine two issues: (1) whether the Defendants’ use of the
Plaintiffs’ name or likeness was primarily commercial or noncommercial; and, (2)
whether such use reasonably relates to a publication concerning a matter that is
newsworthy or of legitimate public concern.3 Because the First Amendment privilege
will not apply if the Defendants’ use was commercial, I must address that issue first.
i. Primarily Commercial or Noncommercial
“Commercial speech is speech that proposes a commercial transaction.” Joe
Dickerson & Assocs., L.L.C., 34 P.3d at 1004 (citing City of Cincinnati v. Discovery
Network, Inc., 507 U.S. 410, 422-23 (1993). “It is the content of the speech, not the
motivation of the speaker, which determines whether particular speech is commercial.”
Id. (citations omitted).
Neither of the mailers proposes a commercial transaction. The mailers are
simply statements of disapproval of certain political candidates. While Public Advocate
In Joe Dickerson & Assocs., L.L.C., the Colorado Supreme Court did not separate these elements, but
rather analyzed them in tandem. Upon close inspection of the Colorado Supreme Court’s opinion and the
parties’ arguments in the present case, I believe it prudent and necessary to analyze these elements
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may profit in some tangential way e.g., a Colorado resident who received one of the
mailers agrees with Public Advocate’s viewpoint regarding same-sex unions and feels
moved to donate money to or volunteer for the organization, such a collateral effect is
insufficient to conclude that the mailers were used for a primarily commercial purpose. I
find that the mailers were used for a primarily noncommercial purpose and therefore the
First Amendment privilege may be asserted. Whether the privilege bars the Plaintiffs’
tort claim depends on whether Public Advocate and Rocky Mountain’s use of Edwards
and Privitere’s name and likeness reasonably relates to a publication concerning a
matter that is newsworthy or of legitimate public concern.
ii. Whether the Use Reasonably Relates to a Publication
Concerning a Matter That is Newsworthy or of Legitimate
Speech deals with matters of public concern when it can be
fairly considered as relating to any matter of political, social,
or other concern to the community, or when it is a subject of
legitimate news interest; that is, a subject of general interest
and of value and concern to the public.
Snyder, 131 S. Ct. at 1216 (internal quotation marks and citations omitted). Same-sex
marriage is matter of public concern. See, e.g., Raymen v. United Senior Ass’n, 409 F.
Supp. 2d 15, 23 (D. D.C. Jan. 20, 2006) (citations omitted) (“Clearly the issues of samesex marriage and support for the military are issues of public concern and both have
been widely discussed in the media”). At the time of the actions giving rise to this suit
(Spring 2012), Colorado had not yet passed the Colorado Civil Union Act, COLORADO
REVISED STATUTES 14-15-101, et seq., effective May 1, 2013, which grants same-sex
couples the legal right to enter into a civil union and enjoy the “rights, protections,
duties, obligations, responsibilities, and other incidents under law as are granted to or
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imposed upon spouses . . .” C.R.S. 14-15-107(1). Thus, the mailers were sent for the
sole purpose of negatively impacting pro same-sex union candidates’ chances of being
re-elected / elected. Public Advocate and Rocky Mountain knew that same-sex
marriage is politically charged issue, otherwise they would not have cherry-picked this
issue out of all the issues facing Senator Jean White and candidate Jeffrey Hare.
Public Advocate and Rocky Mountain’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.
The Plaintiffs present an argument focusing on the phrase “reasonably relate.”
They argue that while whether or not Senator Jean White and candidate Jeffrey Ware
get elected is certainly a matter of public concern, they are not reasonably related to
that matter of public concern. However, whether or not Senator Jean White and
candidate Jeffrey Ware get elected is irrelevant in this discussion. The speech at issue,
which occurred in the context of a political election, is Public Advocate and Rocky
Mountain’s disapproval of same-sex marriage, and the public concern at issue is samesex marriage. The Plaintiffs focus solely on the political election in an attempt to avoid
application of the First Amendment privilege. The Plaintiffs are splitting hairs. The test
of whether the First Amendment privilege applies is whether a defendant’s use of a
plaintiff’s name or likeness reasonably relates to a publication concerning a matter that
is newsworthy or of legitimate public concern. Public Advocate and Rocky Mountain’s
use of the photo reasonably relates to a matter of legitimate public concern: same-sex
marriage. The mailers, in which the predominant image is Edwards and Privitere
kissing, were used to voice disapproval of Senator Jean White and candidate Jeffery
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Ware’s support for same-sex marriage. Thus, the matter of public concern is same-sex
marriage and it cannot be said that the lifted portion of the photo is not reasonably
related to same-sex marriage. Further, the Plaintiffs rely on Magistrate Judge Hegarty’s
Recommendation in Bustos v. United States, 2009 U.S. Dist. LEXIS 80496 (D. Colo.
June 26, 2009), to support their argument. However, in ruling on Magistrate Judge
Hegarty’s Recommendation, Judge Babcock rejected that portion of the
Recommendation relied on by the Plaintiffs. See Bustos v. United States, 2009 U.S.
Dist. LEXIS 74511, *11-12 (D. Colo. Aug. 21, 2009). As such, Bustos does not bolster
the Plaintiff’s argument.
I find that Public Advocate and Rocky Mountain’s use of Edwards and Privitere’s
name and likeness was primarily noncommercial and that it reasonably relates to a
legitimate matter of public concern. As such, the First Amendment privilege bars the
Plaintiffs’ Colorado state law tort claim for appropriation of name or likeness and that
claim is DISMISSED WITH PREJUDICE.
C. Plaintiffs’ Copyright Infringement Claim
In order to prevail on a claim for copyright infringement under the Copyright Act,
17 U.S.C. § 101, et seq., a plaintiff must establish: “(1) ownership of a valid copyright
and (2) copying of constituent elements of the work that are original.” Feist Publ’ns, Inc.
v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991) (citing Harper & Row, Publrs. v.
Nation Enters., 471 U.S. 539, 548 (1985)). Even if a plaintiff establishes these two
elements, the Copyright Act provides a safe harbor for a defendant’s fair use of material
otherwise protected by copyright. See 17 U.S.C. § 107. The Defendants argue that
their use of the photo constitutes fair use under 17 U.S.C. § 107.
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1. Fair Use
When determining whether the fair use doctrine bars a copyright infringement
claim, courts consider the following factors:
(1) the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or
value of the copyrighted work.
17 U.S.C. § 107. The fair use doctrine calls for a “case-by-case” analysis. Harper &
Row, Publrs., 471 U.S. at 549. “Fair use is a mixed question of law and fact.” Id. at 560
(citing Pacific & Southern Co. v. Duncan, 744 F.2d 1490, 1495 n.8 (11th Cir. 1984)).
a. Purpose and Character of the Use, Including Whether Such Use is
of a Commercial Nature or is for Nonprofit Educational Purposes
Public Advocate states that “use of the Mailers was purely educational as part of
Public Advocate’s permissible efforts to inform the voters in the Colorado Republican
primary regarding the issue of traditional family values.” ECF No. 102, p. 12, ¶ 2. While
use for nonprofit educational purposes is valid under this factor, Public Advocate’s use
of the photo is not the type of “education” contemplated by the statute. 17 U.S.C. § 107
states that fair use of copyrighted works “for purposes such as . . . teaching (including
multiple copies for classroom use), scholarship, or research, is not an infringement of
copyright.” That language suggests that the educational purposes contemplated by the
statute’s drafters relates to schooling, not mailers circulated during an election. Thus, I
am not persuaded by Public Advocate’s argument.
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The Defendants also state that their use of the photo was “transformative” and
for political purposes. The Defendants cite to Campbell v. Acuff-Rose Music, Inc., 510
U.S. 569, 579 (1994), for the statement that “the more transformative the new work, the
less will be significance of other factors, like commercialism, that may weigh against a
finding of fair use.” Defendants state that their use of the photo was “highly
transformative.” ECF No. 107, p. 13, ¶ 2. I disagree. A use is transformative if it “adds
something new, with a further purpose or different character, altering the first with new
expression, meaning or message.” Campbell, 510 U.S. at 579. The Defendants did
nothing to the lifted portion of the photo, save removing the bottom portion of Edwards
and Privitere’s legs. The Defendants merely took the lifted portion and superimposed it
on a mailer. While the Defendants placed the lifted portion in a different background
and placed a caption on the mailer, such actions cannot be characterized as “highly
transformative.” Further, the mere fact that the photo was used for political purposes
does not bolster the Defendants’ argument. Thus, this factor does not favor application
of the fair use doctrine.
b. Nature of the Copyrighted Work
“Under this factor, the more creative a work, the more protection it should be
accorded from copying; correlatively, the more informational or functional the plaintiff’s
work, the broader should be the scope of the fair use defense.” 4 NIMMER on COPYRIGHT
§ 1305. In paragraphs 39 – 41 of the First Amended Complaint [ECF No. 92], the
Plaintiffs allege numerous facts regarding Hill’s creative touch on the photo e.g.,
choosing the exact pose, camera angle, focal length of lens, aperture, shutter speed,
lighting, and the photo’s color. Inspection of the photo reveals that it is more creative
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than informational or functional and that Hill, as a professional wedding photographer,
took special care in taking the photo and making sure it depicted the appropriate tone
for the occasion. Thus, this factor does not favor application of the fair use doctrine.
c. The Amount and Substantiality of the Portion Used in Relation to
the Copyrighted Work as a Whole
The Defendants are correct in arguing that they only used a portion of the photo.
They state that “[t]he image of the ‘kissing men’ is at most 20% of the image that
Defendants used in their mailers and it is also only about 20% of the copyrighted
Photograph.” ECF No. 107, p. 13, ¶ 4. Public Advocate states that the Defendants
“transformed the photo by the addition of an entirely different background which
removes the big city feel and places the individuals in a country setting . . . ” ECF No.
102, p. 12, ¶ 4, and p. 13, ¶ 1.
As I previously stated when analyzing the character and purpose of the
Defendants’ use, the Defendants used the focal point, the most important portion of the
photo: Edwards and Privitere holding hands and kissing. The “qualitative nature of the
taking” is important. Harper & Row, Publrs., 471 U.S. at 565. The quantity of a taking
does not necessarily determine the quality of the taking. See, e.g., Roy Export Co.
Establishment etc. v. Columbia Broadcasting Sys. Inc., 503 F. Supp. 1137, 1145 (S.D.
N.Y. Dec. 17, 1980) (“And even assuming that CBS’ use of some of the films was
quantitatively small, the jury could have reasonably have concluded that it was
qualitatively great”). Thus, just because the Defendants lifted approximately 20% of the
photo and used it in their mailer does not automatically tip this factor in favor of applying
the fair use doctrine. Further, “a taking may not be excused merely because it is
insubstantial with respect to the infringing work.” Harper & Row, Publrs., 471 U.S. at
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565. As Judge Learned Hand stated, “‘no plagiarist can excuse the wrong by showing
how much of his work he did not pirate.’” Id. (quoting Sheldon v. Metro-Goldwyn
Pictures Corp., 82 F.2d 49, 56 (2d Cir. 1936), cert. denied, 298 U.S. 669 (1936)).
Because of the quality of this taking, I find that this factor does not favor application of
the fair use doctrine.
d. The Effect of the Use Upon the Potential Market for or Value of the
This factor “requires courts to consider not only the extent of market harm
caused by the particular actions of the alleged infringer, but also whether the
unrestricted and widespread conduct engaged in by the defendant . . . would result in a
substantially adverse impact on the potential market for the original.” Campbell, 510
U.S. at 590 (internal quotation marks and citations omitted). This inquiry “‘must take
account not only of the harm to the original but also to the market for derivative works.’”
Id. (quoting Harper & Row, Publrs., 471 U.S. at 568).
This factor, more than any other factor, is evidence driven. While I could
speculate on the photo’s market and potential market, I believe that would be improper.
Based on the facts of this specific case, analysis of this element is better left for a stage
in the proceedings where the parties present evidence i.e., summary judgment or trial.
As such, I find that the Plaintiffs’ have stated a plausible copyright infringement claim
under the Copyright Act, 17 U.S.C. § 101, et seq., and I DENY Public Advocate and the
Defendants’ Motions To Dismiss [ECF No. 101 & 106] to the extent they seek dismissal
of the Plaintiffs’ copyright infringement claim based on the fair use doctrine.
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After careful consideration of the matters before this Court, it is
ORDERED that Public Advocate’s Motion To Dismiss Plaintiffs’ First Amended
Complaint [ECF No. 101] and NAGR, Rocky Mountain, O’Dell, Andrew Brown, and
Dudley Brown’s Motion To Dismiss The First Amended Complaint [ECF No. 106] are
GRANTED IN PART and DENIED IN PART. 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.
Dated: March 31, 2014.
BY THE COURT:
/s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior U. S. District Judge
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