This case has received some press attention.
Adapted from the Preliminary Statement:
Defendants SarahPAC and Sarah Palin submits this Memorandum of Law in support of their motion to dismiss the Amended Complaint on grounds of improper venue or forum non conveniens (as incorporated into 28 U.S.C. § 1404(a) and for failure to state a claim for which relief can be granted.
The Amended Complaint alleges copyright and trademark infringement arising out of defendant’s use on Facebook, as a thumbnail to a post commemorating the anniversary of the September 11th attacks, of its iconic photograph depicting three New York City firefighters
raising the American flag over the smoldering debris of the World Trade Center (the “WTC Flag Raising Photograph”). Plaintiff North Jersey Media Group, Inc. (“Jersey Media”), which holds the copyright in the photo, makes two claims based on the alleged, and trivial, use of this image by defendants. The first, of course, is copyright infringement, which is addressed below. The second claim is a fantastic one for false designation of origin under the Lanham Act, based on the allegation that “defendants’ unauthorized use of [Jersey Media]’s WTC Flag Raising Photograph on defendants’ websites falsely designates the origin” of that photo and is “likely to cause confusion.”
As an initial matter, the venue of this lawsuit makes no sense at all. Plaintiff Jersey Media is a New Jersey corporation. Its sole place of business is in New Jersey. What it does in New Jersey is publish two New Jersey newspapers. While a mere river – the Hudson – runs through the straight line from plaintiff to this courthouse, the distance traversed to reach defendants, whose connection to this District is utterly tenuous, is, respectively, hundreds of miles to one and transcontinental to the other.
One defendant, SarahPAC, is a political action group organized in Arlington, Virginia, having its principle place business in the Commonwealth of Virginia. The other, Sarah Palin, is the well-known former governor of the State of Alaska, formerly the Republican nominee for Vice President, who is herself a resident of Alaska. In short, 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. Defendants therefore seek dismissal under Fed. R. Civ. P. 12(b)(3) on the ground of improper venue or, in the alternative, for transfer of this action to an appropriate forum.
The Amended Complaint was not only filed in the wrong place; it should never have been filed at all. It is fatally deficient on the law as well and, barring dismissal under Fed. R. Civ. P. 12(b)(3), this Court or a transferee court can, defendants submit, and should dismiss it for failure to state a claim. Plaintiff’s characterization of a copyright infringement claim arising from the use of a photograph into an unfair competition case is so plainly meritless that little argument is, as shown below, necessary to dispose of it. Moreover, 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 but fair use.