Alan Jackson is back in the media this week. This time it isn’t for his violation of Marsy’s law, but for alleged illegal use of photos used to make an attack video on the City Attorney Carmen Trutanich. The Contra Costa Times reports on the covert attack operations going on in the District Attoreny’s office lead by Alan Jackson who fears Trutanich will officially enter the race for Los Angeles District Attorney in 2012 and give him competition for Republican votes.
Contra Costa Times
By Melissa Pamer, Staff Writer
Posted: 12/02/2011 10:24:58 PM PST
Updated: 12/02/2011 10:30:58 PM PST
A slick online video based on “The Hangover Part II” that targets City Attorney Carmen Trutanich’s still-undeclared candidacy for county district attorney is at the center of a new campaign legal spat. A photographer who worked for Trutanich is suggesting he may take legal action against district attorney candidate Alan Jackson for unauthorized use of photos of the city attorney in Jackson’s campaign video.
Jackson, whose campaign manager is convinced that Trutanich himself is behind the threat, defended the video, but declined to discuss the photographer’s copyright concerns. “It is a fair ad that is completely truthful,” Jackson said. “Censorship of First Amendment free-speech rights is not part of what I believe in and I don’t believe a campaign should be part of that.” John Shallman, Trutanich’s campaign manager, said a lawyer’s letter to Jackson about the copyright issue was sent on behalf of a photographer who worked for the 2009 city attorney bid. Trutanich was not connected to the letter, said Shallman.
Trutanich has raised nearly $500,000 for the primary but hasn’t yet said he’s running for D.A. He was elected as Los Angeles city attorney after promising voters he wouldn’t seek higher office – a pledge Jackson’s campaign hammered in its video spoof.
The video, released in July, includes pictures that Trutanich’s campaign manager said were taken by a private photographer in the course of the 2009 race. In October, Jackson received a letter from an attorney alleging “unauthorized use of various copyrighted photographs.” The letter on behalf of an unnamed client later disclosed as a Trutanich campaign photographer, mentioned the potential for damages of up to $150,000 for willful copyright infringements.
Jackson’s campaign cried foul, saying Trutanich was behind the missive. “There’s only one person in the world that would have a vested interest in having us tear down that video, and that is our opponent, and he is a very thin-skinned individual,” said Thomas.
“The joke of it is he’s given my video a second life-cycle. … It’s a gift,” added Thomas, who provided the letter to the Daily News.
Thomas worked on Trutanich’s 2009 city attorney race, which was won after a nasty runoff against then-Councilman Jack Weiss. Thomas said he was working for Jackson now partly because he was disappointed Trutanich might not honor his pledge not to seek higher office. At issue is a video posted at http://electionhangover2.com that attacks Trutanich’s record while mimicking the style of a movie trailer. About two-thirds of the way through the video, a series of photographs of Trutanich flash quickly on the screen.
Photographer Scott Redinger asked Jackson via email in July to stop using the images, Shallman said. (Thomas said the Jackson campaign has no record of that request.) The Oct. 14 letter to Jackson from Pasadena lawyer Nicholas Connon asked questions about the video that Connon said needed answering “before taking any legal action.”
In an interview, Connon said he was representing Redinger and accused the Jackson campaign of trying to “politicize” a copyright issue. Reached by phone and asked about the letter, Redinger said, “I was the definitely the photographer.”
But he said he couldn’t comment any further. “I was told not to talk to reporters,” Redinger said.
Experts divided on claim
Trutanich also did not return requests for comment. Experts who viewed the video were divided on whether a legitimate copyright claim could be made by the photographer. Frederic Woocher, a Los Angeles election law and First Amendment expert, said the case wasn’t “cut and dried.” A judge could decide use of photos in the video would not be subject to the “fair use” exemption of copyright law.
“I would think that the campaign here would be well advised to offer to pay for the photo or remove it from the ad, because apparently there is a substantial risk involved in losing the argument over fair use if it went to court,” Woocher said in an email. But Eugene Volokh, a constitutional and copyright law expert who teaches at UCLA, disagreed.
“There’s a pretty good fair-use claim,” Volokh said. “The defense could say, `We are indeed commenting on the campaign that had used this photo, and this photo, by being part of the campaign, becomes something we should be free to take.” The video also uses a snippet from a 2009 Trutanich campaign television ad. Shallman said the Trutanich campaign had no problem with that.
“We’re just choosing not to pursue it because it’s irrelevant. (Trutanich) might very well have a claim but it sinks below him. His focus is on putting gang members away,” Shallman said. Jackson declared his intent to run for district attorney last December, while Trutanich created a fundraising committee in April. Six other candidates, all prosecutors, have also begun raising funds for the race. The candidate filing period in the nonpartisan race begins Feb. 13 and ends March 9. “We’ll make a decision before then,” Shallman said. “(Trutanich) is not under any time frame. He’s not one of those traditional politicians.”