The Fox News contributor and former Alaska Governor says a copyright infringement lawsuit against her for use of an iconic photo of the U.S. flag being raised at Ground Zero on September 11 should be tossed out. “A New Jersey newspaper has chosen New York as the forum to sue defendants located in distant states, based on conduct with no particular connection to this District besides the subject matter of the photograph — a consideration that is irrelevant for purposes of venue,” lawyers for Sarah Palin wrote yesterday (read it here) in a filing in NYC District Court. “Defendants therefore seek dismissal…on the ground of improper venue or, in the alternative, for transfer of this action to an appropriate forum,” the motion memo adds.
North Jersey Media Group sued the former GOP VP nominee and her political action committee SarahPAC more than three months ago for putting up an edited version of the photograph with the words “We will never forget” on her Facebook page and the PAC’s website without permission. Thursday’s 24-page memo also bluntly notes that “plaintiff’s copyright claim is groundless because the alleged use of plaintiff’s photograph in reduced, cropped form to provide visual and historical context to a Facebook post memorializing the September 11th attacks is not copyright infringement.” Palin’s lawyers say that because the well-known photo was used in such a manner as well as cropped and altered, it is “fair use.” They also note that it was not intended to solicit donations for the PAC in any way.
North Jersey Media Group’s flagship newspaper The Record holds the rights to the photo taken by staff snapper Tom Franklin of a trio of firefighters putting up the flag amidst the ruins of the WTC. Palin and her PAC used the pic, which came down less than two days later, to commemorate this year’s anniversary of the 2001 attack. In its September 14 suit, The group claimed Palin’s use of the pic had “irreparably damaged” its company. It sought to have the pic taken down and to collect unspecified damages. With this week’s filing by Palin, the two sides are either going to come to a quick settlement, as is often the case in these instances, or drag this out in one courtroom or another.
Palin is represented by Ronald Coleman of NYC firm Goetz Fitzpatrick LLP and John Tiemessen of Fairbanks’ Clapp Peterson Tiemessen Thorsness.