Sarah Palin used a photo of firefighters raising a flag at
Ground Zero on 9/11 in her 2013 Facebook post labeled “Never forget.” She was sued for copyright infringement, as
well as for false designation of origin. The false designation theory is that
people will be confused about the photo’s copyright ownership because the SarahPAC
logo is on the same website as the photo (I think the logo is on the website
and not the photo; the complaint is not pellucidly clear about this and neither
is the attached image). This cause of
action is obviously Dastar-barred, something the defendants point out with vim,
but why didn’t plaintiffs bring a false CMI claim if they were going for
extreme legal theories?
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