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Virginia Politics
Posted at 12:50 PM ET, 11/05/2012

Delgaudio’s nonprofit seeks dismissal of lawsuit

Public Advocate of the United States, a conservative nonprofit organization led by Loudoun County Supervisor Eugene Delgaudio (R-Sterling), filed a motion Friday to dismiss a federal complaint alleging that the organization illegally used a same-sex couple’s engagement photo on anti-gay-rights campaign mailers in Colorado.

The Southern Poverty Law Center, a prominent civil rights organization that designated Public Advocate as an anti-gay hate group earlier this year, filed the complaint in September in U.S. District Court in Colorado. The SPLC is representing Tom Privitere and Brian Edwards — the New Jersey couple pictured on the campaign mailers sent out by Public Advocate in June — and Kristina Hill, the photographer who owns the copyright to the original image.


The couple's photo as used by Loudoun Supervisor Delgaudio's conservative nonprofit. (courtesy Southern Poverty Law Center)
The original photograph, taken by Hill in 2010 and posted on Privitere and Edwards’s wedding blog, shows the pair kissing before the New York City skyline. In one of two altered images featured on widely distributed Public Advocate campaign mailers, the city backdrop is replaced by a country setting, and a bright red banner with the words “State Senator Jean White’s Idea of Family Values?” cuts across the couple’s chests.

The lawsuit alleges that Public Advocate’s use of the image was in violation of federal copyright law. It also claims that the group did not have permission to use Privitere and Edwards’s likenesses, and that the theft of their photograph resulted in emotional trauma and threats against the couple.

Delgaudio did not respond to a request for comment Monday.

Public Advocate, represented by Arrington Law Firm in Centennial, Colo., claimed that the use of the couple’s photograph was fair and protected by the First Amendment.

“This case is about one and only one thing: the politics of same-sex unions,” the memorandum stated.

Because the plaintiffs acknowledged that Public Advocate used the photograph to express its view on the issue of same-sex unions, “this admission is fatal to their case,” the memorandum said. “Public Advocate was engaging in the type of political speech the protection of which is at the very core of the freedom of speech guaranteed by the First Amendment.”

Public Advocate also claims that the plaintiffs could not have had a reasonable expectation of privacy, because the photograph was posted on a blog where “anyone in the world with access to a computer could view it.”

Privitere, Edwards and Hill have said that the alterations to the original image — the changed background and the bold red slash across the couple’s chests — were especially disturbing. Public Advocate maintained in its court filing that those very changes were, in part, what justified “fair use” of the photograph.

“Public Advocate used only the images of the two individuals from the photo and thoroughly 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 consistent with the message and voter education purposes of the Mailers,” the memorandum stated.

Public Advocate, which regularly raises more than $1 million annually according to IRS records, has a long history of controversial mass-mailings — including one widely distributed e-mail last year that showed a murder scene with bloodstains in the color of a rainbow, a symbol of the lesbian, gay, bisexual and transgender community.

By  |  12:50 PM ET, 11/05/2012

 
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