Virginia Lawyers Weekly VA Lawyers Weekly
A photographer sufficiently stated a claim against Congressman Tom Garrett and his 2016 campaign for the unauthorized use of a photo depicting people crossing the U.S. border with Mexico, a U.S. district court held.
Background
Plaintiff and photographer Todd Bigelow brings this copyright infringement case against Congressman Tom Garrett and his campaign for the alleged use of a copyrighted photograph on the congressman’s campaign website.
Bigelow allegedly has created numerous photos of persons seeking to gain entry into the U.S. One such photo, under copyright, depicts four people scaling a rusty metal wall. The complaint states that during his 2016 campaign, Garrett “helped himself to the Photo and essentially made it the hallmark of that campaign, using it for numerous purposes including fundraising.” Bigelow says that the Defendants continued to use and display the photo long after being informed that their use was unauthorized and unlawful.
Fair use
Bigelow has not unwittingly pleaded facts on the face of his complaint that support the elements of fair use. Thus, dismissal is not appropriate on this basis.
The Defendants rely on their gloss of the photo depicted in the complaint, stating that they transformed it from a mere historical depiction into a political stance. But at this stage, the court views the facts in the light most favorable to Bigelow. Therefore, their use of the photo still conveys, and is meant to convey, what it always conveyed: A crossing at the U.S./Mexico border.
The viability of the fair-use defense turns on facts and inferences beyond the complaint. The issue thus must proceed at least to discovery before resolution, as is customary in this circuit.
Bigelow also has alleged facts, even if sparse, to support a finding that the photo became a trademark of Garrett’s campaign and that Garrett played some role in copying the photo.
Although the motion to dismiss will be denied for the foregoing reasons, it should not have drawn the type of adjectival remarks used in Bigelow’s brief in opposition. Descriptions such as “utterly baseless,” “ludicrous on its face,” “glib ipse dixit,” and “deplorable cynicism” do nothing to advance a litigant’s case. The Defendants lodged a good-faith, albeit unsuccessful, motion.
Bigelow v. Garrett, Case No. 6:18cv39, Aug. 28, 2018. WDVA at Lynchburg (Moon). VLW No. 018-3-357, 6 pp.
