is political use of 9/11 images fair use?

North Jersey Media Group Inc. v. SarahPAC, No. 13-cv-06494 S.D.N.Y. filed Oct.7, 2013

Sarah Palin used a photo of firefighters raising a flag at Ground Zero on 9/11 in her 2013 Facebook post labeled “Never forget.”  She was sued for copyright infringement, as well as for false designation of origin. The false designation theory is that people will be confused about the photo’s copyright ownership because the SarahPAC logo is on the same website as the photo (I think the logo is on the website and not the photo; the complaint is not pellucidly clear about this and neither is the attached image).  This cause of action is obviously Dastar-barred, something the defendants point out with vim, but why didn’t plaintiffs bring a false CMI claim if they were going for extreme legal theories?

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