Jonathan Bilyk Oct. 21, 2015, 3:10pm

The Illinois Republican Party and several related political action organizations were within the law to lift a photograph and satirize it for use in a political advertisement against a Democratic state legislator, despite not first securing the photographer’s permission, a federal judge ruled in tossing a legal action brought against the political organizations by the photographer and the unwitting subject of the photo at the heart of the controversy.

On Oct. 20, U.S. District Judge James B. Zagel opted not to consider arguments over state claims in the case, completing the dismissal of the federal lawsuit brought by photographer Quenton Galvin and his fellow plaintiff, Jacob Meister, a Chicago lawyer, against the Republican-affiliated organizations.

About 40 days earlier, Zagel had dismissed the bulk of the lawsuit, including copyright claims and other allegations of federal law violations brought by Galvin and Meister.

Named defendants in the case included the lllinois Republican Party; Illinois House Republican Organization; candidate Roderick Drobinski and his campaign organization, Friends of Rod Drobinski; Jamestown Associates LLC; and Majority Strategies Inc.

The complaint centered on a flyer produced by the defendants in the case and distributed by the thousands to voters and the public in a 2014 general election campaign for the seat in the state’s 62nd Legislative District in Lake County between Drobinski, the Republican candidate, and Democratic incumbent State Rep. Sam Yingling, of Grayslake.

In October 2014, Drobinksi’s campaign and its allies produced the flyer, which they had intended to design to show Yingling driving a convertible away from the Illinois State Capitol in Springfield with a stream of $100 bills blowing from the car. The flyer contained the caption: “Mr. Yingling Went to Springfield… And Fiscal Responsibility Went Out the Window.”

However, instead of Yingling, the photograph actually feature Meister, who had been driving a convertible vehicle bearing Yingling’s placard during a parade. A photo of the vehicle being driven by Meister had been taken by Galvin, and Galvin had authorized Yingling to post the photo to his website. Drobinski and others associated with the flyer admitted they lifted the photo from that website for use with the flyer.

Galvin and Meister filed suit in December 2014. They were represented in the action by the firm of David A. Axelrod & Associates, of Chicago, and by attorney Ed Mullen, of Chicago.

The complaint alleged the Illinois Republicans had conspired to infringe Galvin’s copyright.

In September, however, Zagel said the photo’s use in the flyer constituted fair use under federal law.

Zagel said the political nature of the use, as well as the intended use to criticize Yingling’s fiscal voting record, does not, in and of itself, absolve the organizations responsible for the flyer from liability for lifting the photo without Galvin’s approval. He noted, for instance, the groups could have opted to use other images to make their political point.

However, the judge said the flyer was clearly a parody, and so using the photo in it did not harm Galvin or the value of his photographic work, the judge said.

“A basic comparison of the two works reveals that they cater to wholly different audiences,” Zagel wrote. “Anyone who wants an accurate depiction of the political parade or Mr. Yingling’s campaign activities … would not plausibly license the flyer instead.”

Zagel said plaintiffs needed to do more to demonstrate any lasting harm from the photo, other than to those that might be depicted in them.

“Avoiding this result is simply not a purpose of copyright law,” Zagel wrote. “Fair use analyses do not take account of commercial deprecations that are due solely to critical commentary of underlying works … Potential market harm due to the blemished reputation of the politician depicted in the photograph is not protected by plaintiff Galvin’s copyright.”

Just as he dismissed the federal counts, Zagel on Oct. 20 also dismissed similar allegations, including appropriation of an image, conspiracy and false light, among others, brought under Illinois state law.

Drobinski, the Illinois Republicans and other defendants were represented in the action by attorneys with the Saper Law Offices, of Chicago.

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Organizations in this Story

David A. Axelrod & Associates
20 S Clark St
Chicago, IL 60603

Bucktown Law
2129 North Western Avenue
Chicago, IL 60647

Saper Law Offices
505 North LaSalle Street
Chicago, IL 60654

Illinois Republican Party

Chicago, IL

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