Shmuley Boteach Upbraided By Lawyer Over Ilhan Omar Photo

A Boston photographer named Jason Grow has made a legal claim against well-known Rabbi Shmuley Boteach over “unauthorized use of a photograph of Ilhan Omar, a recently-elected member of the United States House of Representatives.”

According to the letter obtained by California Globe, Boteach’s charity, the World Values Network, “made two unauthorized uses of the Photograph.” This refers to both a full-page ad that ran in the Washington Post and to an appeal for funds on the website gofundme.com. The claim asks for damages from the use of the photograph plus “any profits that were earned from the use and infringement of the Photograph plus attorney’s fees and costs.”

The letter, written by Andrew Epstein of the Boston firm Barker, Epstein & Loscocco, also demands that Boteach “immediately stop using the Photograph for any purposes whatsoever.” It advises Boteach to be in touch no later than Wednesday, May 8.

Firing off a missive such as this can be something of a cottage industry for a law firm. In fact, Mr. Epstein’s email address, photolaw@aol.com, suggests this isn’t the first letter like this he’s ever sent. The way it usually works is that a firm seeks out a photographer after noticing what it suspects are illegal usages of images. Indeed, this photo, which was taken January 18, 2019, seems to have been registered with the Copyright Office on March 25, 2019, three days after Boteach’s gofundme campaign went up on March 22, 2019. (The fundraising appears a bit slow — in more than a month, it’s raised $578 of its $50,000 goal.) 

Grow has spent decades perfecting his craft, and it shows. He got his start right here in the Golden State, shooting for the Mercury News after graduating SFSU. His shot of Alexandria Ocasio Cortez for Politico is the single best portrait I’ve seen of one of the world’s more photographed people. If you want to see Grow’s amazing AOC photo, check out his website — I’d display the it here, but I ain’t looking for the California Globe to get a similar letter from Epstein! Reached for comment, Grow told the Globe, “I’m going to have to touch base with my brief before I can comment.” This story will be updated if Grow chooses to weigh in.

Two lawyers contacted by California Globe diverged somewhat in their assessment. One said, “The lawyer for the photographer who owns the copyright on the photo [is] on pretty good legal ground sending it. I’d suggest [Boteach] take down uses of that photo and find one that is free.”

Another lawyer saw it differently. Robert Garson, Managing Partner of Garson, Segal, Steinmetz, Fladgate LLP and a published author on First Amendment law, said that “Using a photograph in such circumstances likely falls within the sphere of Fair Use, where a non-profit is seeking to bring light to an elected official’s public descent into classic anti-semitism.”

This refers to what makes the case somewhat juicy. The frosty relations between Rep. Omar and the Jewish community – especially the highly Zionist part of that community that the high-profile rabbi is identified with—makes this routine dispute about copyright infringement more compelling.

The lawyer for the World Values Network, Scott B. Piekarsky, also weighed in. He told the California Globe, “The World Values Network acted well within its legal rights by utilizing the photograph of Congresswoman Ilhan Omar published publicly on Facebook in accordance with Facebook standards. Those threatening legal action for this proper use seek to infringe upon the First Amendment rights of this Jewish based 501c 3 charitable organization.  The wvn will vigorously defend its constitutional rights and vindicate its proper and  lawful free speech.”

An interesting angle here is that every single Congressperson – and almost all elected officials generally – has an official portrait that anyone is free to use in any capacity. That’s what you’re seeing atop this story. And most politicians also share high-quality photos on social media that publications are free to use, even to criticize the politician. That easy availability makes the use of a copyrighted image – if that is indeed what took place here – all the more puzzling.

For his part, the ever combative Rabbi Shmuley was not inclined to shrink from a battle. “This past March, our organization, The World Values Network, took out a full-page ad in The Washington Post calling out Rep. Ilhan Omar for her blatantly anti-Semitic remarks and comparing them to classic texts of historical Jew-hatred,” Boteach told the California Globe. “We used as a background for the ad a photo taken from her Facebook in accordance with Facebook standards. Now we have received a lawyer’s letter from the photographer who took Ilhan Omar’s photo, demanding $150,000 in damages. We first heard of this issue when somebody called our office and shouted at an employee, ‘Who’s the [expletive] I need to sue?’ We wish to make it clear we will not be silenced about Ilhan Omar and her personal war against the Jewish people. Those threatening legal action for the proper use of this photo want to stifle the First amendment rights of a Jewish organization that battles anti-Semitism. Jews are being gunned-down in synagogues on American soil over ideas frighteningly similar to Omar’s claims of Jewish ‘Benjamins’ controlling Washington. All the legal threats in the world will not silence us. We will speak out against the demonization of the Jewish people and defend our rights to free speech.”