We previously reported on the lawsuit by North Jersey Media Group against Sarah Palin and SarahPAC, over Palin’s use of a copyrighted photo of firefighters raising the American flag at ground zero on 9/11, Palin firefighter copyright lawsuit Complaint — no proof of “fundraising” off photo.
Considering that the photo was used only on a Facebook message remembering 9/11, and there was no proof the photo was used for fundraising, it seemed strange that NJMG would pursue a federal lawsuit. Normally, there is a demand to cease use, and no lawsuit if the use ceases.
The original Complaint was very vague as to the notice given to Palin and SarahPAC about alleged infringement, and NJMG refused to provide me with a copy of the demand letter it said it sent. Also, there was no evidence the photo was used directly for fundraising, although there was that allegation in the Complaint.
It appears, however, that NJMG is not letting go of the case, as it filed an Amended Complaint yesterday in federal court beefing up it’s allegations (1) that Palin and SarahPAC had sufficient contacts with New York State so as to be subject to personal jurisdiction in the Southern District of New York, (2) that notice was given prior to suit, and (3) alleged fundraising.
Yet the Amended Complaint still is pretty thin as to notice and alleged fundraising.
The Demand letter still is not attached to the Amended Complaint. Here’s the allegation as to notice prior to filing suit:
13. On or about September 12, 2013, NJMG, through its counsel, gave electronic notice of the infringement to SarahPAC and Sarah Palin through the “Contact Us” tool on www.sarahpac.com. On or about September 12, 2013, NJMG, through its counsel, sent a letter, by priority overnight mail, to SarahPAC and Sarah Palin informing them of the infringement.
14. Defendants did not remove the WTC Flag Raising Photograph from their web pages until after NJMG filed this action on September 13, 2013.
That’s rather thin notice. Who knows if the “Contact Us” notice was seen within the single business day (NJMG doesn’t say what time of day it filled out the form), and the overnight letter by definition would not have been seen, at the earliest, until the day of the lawsuit.
Similarly, the allegations of use of the photo for fundraising still does not allege a specific fundraising solicitation using the photo. The allegation is simply that SarahPAC solicits funds, and since the photo appeared on its website, that constituted fundraising:
18. Defendants have infringed NJMG’ s WTC Flag Raising Copyright in violation of 17 U.S.C. § 501 by using it to promote Sarah Palin, and to raise money for SarahPAC. Specifically, the web page, www.sarahpac.com, solicits and accepts financial contributions from supporters. Further, www.sarahpac.com accepts requests for Sarah Palin to make paid appearances at events, including media and campaign events. The web page www.facebook.com/sarahpalin contains a link to www.sarahpac.com.
That’s a stretch in logic, made all the more implausible by the fact that the only evidence attached to the Amended Complaint that the photo was on the SarahPAC website was a sidebar Facebook feed from Palin’s Facebook account.
The allegations of continued use after a demand to cease, and profiteering from fundraising, are important elements of NJMG’s demand for statutory damages. If there is no proof of those allegations, it’s hard to understand why NJMG is continuing the lawsuit, since the photo was taken down almost a month ago. (See the legal context explained by Ron Coleman at the bottom of this post.)
We reached out for comment both to NJMG and Palin/SarahPAC — by email to addresses we know to be good, not just to the “Contact Us” tool.
As of this writing, no one has responded.North Jersey Media Group v SarahPAC and Sarah Palin – Amended Complaint