Palin Claims Facebook Post of 9/11 Flag Photo Was Fair Use under Copyright Law

Former Alaska Governor and Republican Vice Presidential candidate Sarah Palin has claimed that her posting of a photo of firefighters raising an American flag at the WorldTradeCenter site was “fair use” under US copyright law.

Palin was sued for copyright infringement in September by the operators of the New Jersey newspaper that owns the rights to the image.

Palin had posted a cropped version of the image on her Facebook page and PAC website.

The North Jersey Media Group’s suit alleges that Palin and her political action group (SarahPAC) violated its copyright in the photo and that Palin never sought permission to use the image for fundraising purposes.

Palin countered that the posting of a historic and patriotic image to commemorate the tragedy of 9/11 was fair use under copyright law.

In their response to the suit, Palin’s copyright attorneys cited the recent ruling in favor of Google with respect to the millions of books scanned and made available online in the Google Books project.  They said that Palin’s use was even more a matter of fair use since, unlike Google, Palin and her PAC are not for-profit entities.

Palin’s response to the suit also addressed other prongs of the fair use test, claiming that the cropped and altered version of the photo Palin used did not affect the market for the original photo.

The photo at issue, known as “Raising the Flag at Ground Zero” appeared on the cover of The Record (of New Jersey) and other newspapers.  The photo has been compared to another iconic image, “Raising the Flag on Iwo Jima.”

The Iwo Jima photo was the basis for the Marine Corps War Memorial in Washington, DC, depicted above.

Stay up-to-date on the latest Intellectual Property Law news from Sheldon Mak & Anderson.

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