North Jersey Media Group, Inc. v. SarahPAC, et al.

Brief in Support of Motion to Dismiss Trademark and Copyright Infringement Claims

by Ronald Coleman

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.

(The court agreed on the venue issue and issued an order in January 2014 transferring the case, albeit to one neither party requested, the District of New Jersey, where plaintiff is located.)

LOADING PDF: If there are any problems, click here to download the file.

Reference Info: Legal Memoranda: Motion Addressed to Pleadings | Federal, 2nd Circuit, New York | United States

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ronald Coleman, Archer & Greiner, PC | Attorney Advertising

Written by:

Ronald Coleman

Archer & Greiner, PC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.