An ad campaign for Congressman Charles Djou makes his opponent, Colleen Hanabusa, look bad.

But an unflattering photograph used in the flier and TV ad has cast a negative light back on Djou.

The photo was used without the permission of its owner, the Honolulu Star-Advertiser, something one of Hawaii’s leading First Amendment lawyers says is a clear violation of copyright law.

The photo depicts Democratic 1st Congressional District candidate Hanabusa, arms folded, dressed in black and glowering. It dates back to a 2004 Honolulu Advertiser story, and the Star-Advertiser acquired the rights to it when the Honolulu Star-Bulletin purchased and merged the two papers’ operations earlier this year.

“We’re not really considering pursuing (legal action) actively at the moment,” Frank Bridgewater, the Star-Advertiser’s editor and vice president, told Civil Beat Tuesday. “It doesn’t mean that we won’t do anything.”

The Hawaii GOP and the campaign for Djou, a lawyer, paid for a political ad that uses a digitally altered version of the paper’s photo. In the television ad, the cut-out of Hanabusa appears darkened, so that shadows on her face are more visible. The campaign also used the photo on a flier that was mailed to 1st Congressional District residents.

“There was a mailing that went out, but it’s already out,” said Dylan Nonaka, executive director of the Hawaii Republican Party. “I let (Star-Advertiser management) know that the ad was coming off the air yesterday, which it did. It ran its course. My question back to them is why is this such a big deal? It just seems like a little bit of an overreaction.”

Nonaka argues that because a media consulting group easily found the image through a Google images search, it should be available for use. He said the fact that Democrat opponents use the paper’s logo in their ads suggests the newspaper’s reaction is political in nature. (A spokesman for Hanabusa declined to comment on the ad.)

“It seems political,” Nonaka said. “I would think their logo is more of a sacred copyright than one of the thousands of pictures they have online.”

But the issue of legality boils down to copyright law.

“It says right on the Google site, if you put your arrow on the photograph, who owns it,” said local media lawyer Jeff Portnoy. “It says Honolulu Advertiser.com. So, it’s ridiculous to say it’s not a violation of copyright law.”

Portnoy said copyright law can get complex in political campaigns, and that there are some fair-use exceptions.

“One could argue that it’s fair use, but even if that argument was to be accepted, you don’t have the right to modify someone else’s work,” Portnoy said. “The issue is altering a work, a creation, and you can’t do that.”

Star-Advertiser political reporter B.J. Reyes pointed out the photo’s origins in a blog post days after the ad first ran Oct. 11. In Tuesday’s edition of the newspaper, Reyes wrote a short article about the copyright infringement.

Bridgewater said he asked Reyes to write a follow-up to his blog post out of concern that readers would believe the newspaper allowed Djou’s campaign to use a Star-Advertiser photo in a political ad.

“We were receiving questions from people saying, ‘Did you approve this? What’s going on?’ We want people to know we were not involved in this,” Bridgewater said. “We do expect people to ask for approval. Just because it’s off the Internet doesn’t mean you can run it without any consequences or without permission.”

Nonaka said the Djou campaign won’t use the image again, but he also refused to apologize for using it in the first place.

“We didn’t willfully wrong them and I’m not going to admit that we knowingly used their copyrighted photo, which we did not,” Nonaka said. “We didn’t make any money off of it or anything. That’s it.”

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