A federal case involving a same-sex couple who alleged that Loudoun County Supervisor Eugene A. Delgaudio’s conservative advocacy group illegally used their private engagement photograph has ended in a settlement agreement between Delgaudio’s group, Public Advocate of the United States, and the photographer who shot the image.
The settlement was announced Thursday in a statement by Public Advocate, hailing the outcome as a victory for the organization and its supporters.
In April, a U.S. District Court judge in Colorado issued a split decision in the case, finding that the plaintiffs — New Jersey couple Tom Privitere and Brian Edwards, and photographer Kristina Hill, who took the original photograph — had a “plausible copyright infringement claim,” but dismissing their allegation that the couple’s likenesses had been illegally misappropriated for use on anti-gay marriage campaign mailers.
Following the ruling, Privitere and Edwards entered into an agreement in May with Public Advocate of the United States, wherein both parties assumed responsibility for their own legal fees. Privitere and Edwards also waived their right to an appeal, according to court records.
Hill was paid $2,501 to settle the remaining copyright claim, according to Public Advocate.
The Southern Poverty Law Center, a prominent civil rights organization, filed the complaint against Public Advocate in September 2012, after the photo of Privitere and Edwards was used by the organization on political campaign mailers that attacked a Colorado lawmaker for supporting same-sex civil unions.
The photograph of Edwards and Privitere, as originally taken by Hill and featured on the couple’s wedding blog, showed the pair kissing in front of the New York City skyline. But in one of two altered images widely distributed on campaign fliers, the backdrop was replaced by a snowy country scene and a bold red banner emblazoned with the words “State Senator Jean White’s Idea of Family Values?” cut across the couple’s chests.
The plaintiff’s lawsuit alleged that Public Advocate’s use of the image violated federal copyright law and also constituted unlawful misappropriation of the couple’s likenesses.
But Senior U.S. District Judge Wiley Y. Daniel disagreed with the latter allegation, saying in his March 31 order that the claim of misappropriation would be dismissed because the First Amendment allows for the use of an image that pertains to a matter of public concern — and use of the photo in the anti-gay mailers “reasonably relates to a matter of legitimate public concern: same sex marriage,” Daniel wrote in his order.
In a statement Thursday, Delgaudio (R-Sterling) hailed the outcome of the case as a victory “for Public Advocate and its supporters, as well as for me, my lawyers and for America.”
Delgaudio noted that while a settlement payment was made to Hill, “no payment whatsoever” was made to Edwards or Privitere.
“Our use of photo in the mailings was intended to expose the candidates who were trying to hide their support for homosexual marriage,” Delgaudio said in the statement. “We succeeded in that effort, and our use of a photograph owned by this photographer was unintentional. We felt no need to continue the case once the claims by the two homosexuals who sued us was dismissed. . . . Of course, we had no desire to offend these two homosexual men, but once they posted on the Internet a picture of their ‘wedding,’ they entered into the public debate over homosexual marriage, and it was perfectly reasonable for Public Advocate to use the photograph.”
Attorneys with the Southern Poverty Law Center were not immediately available to comment on the case.
Public Advocate, which was designated a hate group by the Southern Poverty Law Center in 2012 — a label Delgaudio has said he will fight — has frequently sparked headlines with its openly anti-gay messages. Delgaudio has claimed that airport pat-down security procedures, anti-bullying legislation and a Florida pirate festival serve as evidence of what he calls the proliferation of “radical homosexuality” in the United States.
The four-term supervisor is also defending himself against a recall petition filed by Sterling voters who seek to remove him from his seat on the county Board of Supervisors, citing allegations that he used his public office to benefit his political campaign. That case remains pending in Loudoun County Circuit Court, with a hearing set for June 24.