In Kristina Hill, Brian Edwards and Thomas Privitere v Public Advocate of the United States, a homosexual couple who had posted an engagement photo on their blog were devastated to discover that the image had been used in two political advertisements that opposed same-sex marriage. After realizing the advertisements had been sent to several thousand people without their permission, the couple asserted both a copyright infringement and unlawful appropriation of name and likeness claim. The defendants argued that their unauthorized use of the photo was justified under the First Amendment and, to the couple’s dismay, the United States District Court for the District of Colorado agreed.
Appropriation of Name or Likeness
The couple argued that the defendants’ use of their engagement photo constituted the tort of appropriation of name or likeness. To succeed in such a claim, the plaintiffs must demonstrate that the defendants used the plaintiffs’ names or likenesses, the use was for the defendant’s own purposes or benefit, commercially or otherwise, and the plaintiffs suffered damages due to the defendant’s actions. However, a claim of appropriation of name or likeness cannot succeed if the use in question is protected under the First Amendment which states that “Congress shall make no law…abridging the freedom of speech.” In Snyder v Phelps, the Supreme Court of the United States held that the Free Speech Clause can be used as a defence in state tort claims.
Invoking the First Amendment: Noncommercial Purpose
A prerequisite for invoking the First Amendment defence is that the message must have a noncommercial purpose. As the purpose of the First Amendment is disseminating information regarding matters of public concern, scholars argue that commercial messages should be given the least protection as they offer the lowest amount of information, in contrast to political, informational, and entertainment works .
Judge Daniel ruled that the defendants met this requirement as the purpose of their messages was to express disapproval of political candidates who support homosexual marriage. The Court disagreed with the plaintiffs’ argument that messages which solicit donations (as in this case) are automatically commercial. In Raymen v United Senior Ass’n, the Court held that a political message may be noncommercial even if it has “commercial undertones”. What is necessary is that the donations are not a prerequisite for viewing the message. As these criteria are satisfied, the defendants are eligible for protection under the First Amendment.
In my opinion, the emphasis on the commercial or noncommercial nature of the message when invoking a defence under the First Amendment shows how little the plaintiff’s personal losses factor into the equation. Although the definition for the tort of appropriation of likeness states that the benefit derived by the defendants can be commercial or otherwise, it seems that the focus is largely on commercial gain. The damages suffered by the plaintiffs are more easily proven if they experienced economic loss (compared to emotional harm) and a defence under the First Amendment would not be available to the defendants.
Invoking the First Amendment: Newsworthy or Legitimate Public Concern
A requirement when arguing a First Amendment defence is that the use must reasonably relate to a publication concerning a matter that is newsworthy or of legitimate public concern. The defendants’ argument was successful as their use of the photos was to address a legitimate public concern. Judge Daniel citing Raymen, stated that the issue of same-sex marriage is a legitimate public concern and is widely discussed in the media.
The First Amendment gives the greatest protection to newsworthy content because it promotes a “free marketplace of ideas”, which is necessary for public debate, clarity of thought and informed decision making . The public should have access to all relevant information, not just the selective content offered by the government.
Fair Use Argument
Although the plaintiffs lost their case, they did succeed in proving that the defendant’s use of the photo was not protected under the fair use exception. In fact, the Court found that the defendant failed to meet many of the criteria required for establishing fair use as listed in 17 USC § 107 (Limitations on exclusive rights: fair use). Most interestingly, the Court ruled against the defendant’s argument that by using only 20% of the original photo, they had not taken a substantial portion of the content from the original work. The Court stated that “the quantity of a taking does not necessarily determine the quality of the taking”. Since the portion that was taken was the focus of the photo and contains significant creative content from the photographer, the taking was still substantial.
The defendant’s success in this case, despite the Court ruling against their fair use argument, demonstrates to me the minor role that fair use plays in the conflict between appropriation of name or likeness and freedom of speech.
In my opinion, this case marks a win for the press and anyone who seeks to use private individuals’ information to promote a newsworthy message, and a loss for privacy and individual rights. Until the Courts come up with a new precedent, I think users would be wise to refrain from putting anything in the public domain they do not want to see featured in the next political ad campaign.
 Roberta Rosenthal Kwall, “Right of Publicity vs the First Amendment: A Property and Liability Rule Analysis” (1995) 70 Ind LJ 52 at 63.
 Supra, note 2 at 63.
Sabrina Ding is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.