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Published March 22, 2011, 01:29 PM

ND Blogger Sued Over Photo Use

Hennen, Port say use of photo on Say Anything site falls under ‘fair use’ doctrine
Two well-known North Dakota conservatives are among the latest targets of a Nevada-based company’s effort to crack down on copyright violations in the blogosphere.

By: Kristen Daum, Forum Communications

Two well-known North Dakota conservatives are among the latest targets of a Nevada-based company’s effort to crack down on copyright violations in the blogosphere.

According to a lawsuit filed last month in Colorado’s U.S. District Court:

Rob Port and Scott Hennen, both featured radio personalities on Fargo’s AM-1100 The Flag, published a photo without permission on SayAnythingBlog.com.

Port manages the website’s content, but the domain is registered under Hennen’s name.

The Say Anything Blog and Hennen’s Freedom Force Communications also are named individually in the suit.

Hennen called it “a frivolous lawsuit.”

“They’re just on a fishing expedition for money, but they don’t have a legal leg to stand on,” Hennen said. “It’s just much ado about nothing.”

According to the lawsuit, Port posted a controversial photo in November of a TSA agent, who appeared to be invasively patting down a traveler at Denver International Airport.

The photo originally ran in The Denver Post and was then widely circulated through The Associated Press and re-published by many professional media, including The Forum.

However, Port did not have permission to use the photo, according to the suit from Righthaven LLC.

Righthaven represents The Denver Post and several other media outlets and has initiated more than 250 lawsuits nationwide over instances of alleged copyright infringement, often by bloggers.

In a response filed last week, Port and Hennen denied the allegations.

They said the image was used “to stimulate debate and foster discussion” and claim they had a right to use it under the Fair Use Doctrine.

“Fair Use” refers to a provision in federal law that allows copyrighted material to be used in cases of criticism, comment, news reporting, teaching and research.

It is often up to the courts to determine cases of fair use versus infringement.

Port filed a counterclaim, seeking a judgment that the image falls under fair use.

He told The Forum on Monday that he’d found the TSA photo through a Google image search and used it “to illustrate exactly what was going on.”

“I didn’t know at the time who owned it,” he said.

The photo is no longer visible on Port’s blog, but he said the image is still there and was likely misplaced when he transferred servers earlier this year.

“I don’t really keep track of images that well,” Port said, adding that he “typically” links images to their sources.

Port touts his site as “the most widely read political blog in North Dakota.”

Righthaven argues that Port’s use of the photo and violation of its copyright caused “irreparable harm.”

The company is seeking an order preventing Port, Hennen and their affiliated organizations from using the image anymore, control of the domain Say

AnythingBlog.com and statutory damages of $150,000.

“The Say Anything Blog is not really in competition for the Denver Post,” said John Hinderaker, a Minneapolis attorney representing Port and Hennen.

“What these people are trying to do is extort a very modest amount of money from everybody they sue,” he said.

Daum is a reporter at the Forum in Fargo

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