Photo hijacked by Italian political party leaves local photographer owing thousands

This photo, currently at the centre of legal struggles for a Gananoque-based photographer, shows Frankie and BJ holding their newborn son for the first time. Photo by Lindsay Foster.

When Lindsay Foster took a moving photograph in 2014 of two men holding their newborn son, little did she know she would be paying for it seven years later, and mired in an international lawsuit with the ruling Italian political party.

Foster, a professional newborn photographer and owner of Lindsay Foster Photography in Gananoque, is being forced to pay the legal fees of Italy’s Fratelli d’Italia political party, which stole a photo she took in 2014 and used it to bolster a hate campaign against 2SLGTBQIA+ people in Italy.

In June 2014, Foster photographed the surrogate birth of a baby to a young gay couple. One image she took shows the two dads, Frankie and BJ, crying as they embrace their minutes-old son, Milo. During Pride Month that year, Foster said, the photo was shared widely online and “went viral… It resulted in a lot of positive and a lot of negative feedback.”

Then, a year later, she learned that her viral photo was being used to push an anti-LGBTQ, anti-surrogacy agenda by the Fratelli D’Italia political party.

“I received hundreds of emails from people all over, including Italy, asking me to please take [Fratelli d’Italia] to court for copyright Infringement. This beautiful image I took should never have been used in such a negative and hurtful way,” she said.

“Luckily, we had several emails from lawyers asking if they could take this on pro bono. Between the dads and I, we found [lawyers] who we thought would be suitable for us to proceed with legal action. These lawyers were very optimistic that the case would be won. So we took [Fratelli D’Italia] to court for $1 million (EU).”

“We had a huge language barrier, obviously; so a lot of our communication was done through Google Translate,” pointed out Foster.

“Well, here we are, seven years later,” she said. “Frankie and BJ won their case for damages caused to them by their image being used, and I am so very happy for them.”

But, she continued, “the results for me regarding copyright got tossed out in court. [I found] out that my lawyer failed to fight for copyright infringement, neglecting to show that I owned this photo and [that] it was taken and altered for [the political party’s] propaganda and advertising. They only argued at the trial about the financial loss that their publication would have given me” if the party had had permission to use Foster’s image.

Foster could not believe it: “Why would I ever want a single cent from the Fratelli d’Italia to allow them to use my image for advertising in this way? Why would these lawyers actually go in this direction with the lawsuit?”

Lindsay Foster. Photo submitted.

To make matters worse, she explained that because her case got “tossed out in court, and I didn’t win, I have to pay the defendant’s court costs of 3,800 euros [about $5,400 CAD] plus VAT (value-added tax) and general fees, [of] which I have yet to find out the total amount.”

“I have gone through every email from these lawyers, and I never got told this was a possibility,” she asserted. “So, here is my small business now hanging on by a thread because a photo of mine got taken and used without my permission… and I have to pay for it.”

Foster called the situation “bittersweet… I am so happy for Frankie, BJ, and Milo for winning their battle against the Fratelli d’Italia… As the photographer of that photo, it has opened my heart, but it also opened my eyes to how serious copyright infringement is all across the world.”

“I am literally having to pay the Fratelli d’Italia for using my photo for hate propaganda against gays and surrogacy,” she lamented. “It’s absolutely absurd.”

“I pride myself on giving my clients memories that they will cherish for a lifetime. I feel, with Frankie and BJ, I did exactly that. However, it’s an absolute nightmare for both the photographer and the clients when a photo gets taken off the internet and used in such a hurtful and hateful way… especially by a political party, of all people,” Foster expressed.

“I felt horrible that this happened. For over nine years, there’s been a huge weight on my shoulders, wanting to protect my clients. My hope with this legal battle was to raise awareness regarding copyright infringement. I want everyone to learn that it’s not right to take a photo that is not yours and use it for print, advertisement, or marketing purposes.”

Foster explained that she feels “really gun-shy” about asking for more legal help, under the circumstances. “I have friends saying [I should] ‘contact a Canadian lawyer and get some feedback from them… you could appeal it here in Canada’ and I’m like, ‘Oh God, I’m so scared of even going through this again.’”

“Luckily,” said Foster, “there have been a lot of people reaching out to help, and my friend set up a GoFundMe… so that’s great. But I don’t know what my next steps are. It was a bad story.” 

Foster’s friend Stuart Seemungal is raising funds to help her pay her legal fees. His GoFundMe page explains the situation in brief, saying, “I have set the goal of this fundraiser to $8,000 CAD to cover off admin fees and any currency fluctuations — Lindsay has stated that if there is more money donated than what she needs she will donate it to a Pride charity.”

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