Gay couple from Toronto wins lawsuit in Italy after son's birth photo used in anti-surrogacy campaign

A same-sex couple from Toronto took on Italy’s ruling right-wing political party and won after a moving image of their first moments with their newborn son was used without their consent in an anti-surrogacy campaign.

In 2014, BJ Barone and Frankie Nelson welcomed their son Milo with the help of a gestational surrogate.

They’d hired photographer Lindsay Foster who captured a striking and heart-warming image of the married couple holding their child for the very first time. That photograph went viral, but not long after it was used without consent by the Fratelli d’Italia.

It was also used without permission by independent Irish politician Mary Fitzgibbons to push her platform against surrogacy for gay parents in that country’s February 2016 general election, but has since been taken down.

A poster for an anti-surrogacy campaign by Italy's Fratelli d'Italia party that used an image without consent from moments after the birth of BJ Barone and Frankie Nelson's son, Milo.

Shortly thereafter, Italian LGBTQ2S+ law firm Gay Lex came forward with a pro-bono offer of legal assistance for the east-end residents, who are both Toronto high school teachers. Barone and Nelson accepted that offer.

In an email exchange with CP24.com, Giarratano said he and his partner Cathy La Torre wanted to take on this case because they felt that it was wrong for the Fratelli d’Italia to use the image of Milo’s birth to “spread hate against LGBTQ+ families” and wanted to do what they could to help.

Gay Lex went on to represent Barone and Nelson in a lawsuit against the Fratelli d’Italia and after seven years of court proceedings, won the case. Italy’s ruling national party has now been ordered to pay Barone and Nelson 10,000 Euros each for “offensive use of their image.”

Giarratano said it wasn’t an easy case to pursue as there were “so many” precedents pertaining to the offensive use of an image by a political party.

He also said that the judge’s decision sends a strong message and sets an important precedent.

“The Italian Government in this moment is promoting many laws against the LGBTQ2S+ community. It's important that everyone understand that family is only about love,” he wrote.

“So the outcome of this case represents an important point of view, and an invitation to resist and fight for LGBTQ2S+ rights. It will lead to change and people, groups and above all, parties will think twice in future before using a photo to spread hate.”

Barone and Nelson received the good news in early June during Pride Month, but have yet to see any of the funds as the Fratelli d’Italia has appealed the court’s decision.

“We honestly never expected anything to come of this. We’d been going through the Italian court system for so long that we almost wondered at some points if it was still happening,” Barone said during a recent interview with CP24.com.

“We were very happy when we found out.”

Nelson said the outcome of their case proves that their photo is all “about love not hate.”

“That photo has been used many times for educational and positive reasons, but using our image for hate and negativity is something we never wanted,” he said.

Barone added that many people in the gay community overall are feeling “beat down” recently as an “undercurrent of right-wing intolerance” emerges and this legal victory will help to encourage he and his partner along with others worldwide to keep moving forward despite the haters.

An image by Eastern Ontario photographer Lindsay Foster that was used without consent in an anti-surrogacy campaign in Italy.(Lindsay Foster photog)

The same legal team in Italy that helped Barone and Nelson also contacted Foster, the photographer, about assisting her to file a lawsuit against the Fratelli d’Italia for the use of her image without permission.

A judge ended up dismissing that case after determining that Foster’s photo was already widely available on the web and therefore there was no copyright infringement, even if it was misused, Giarratano said.

Without pursuing an appeal Foster is, however, on the hook for paying roughly 4,500 Euros ($6,640 CAN) in court and administrative costs.

During an interview with CP24.com, she said that having an image she took being misappropriated and used for hateful purposes was a “huge weight” on her shoulders and she’s ”super happy” that Barone and Nelson won their case against the Fratelli d’Italia.

A friend of Foster ended up creating a crowdfunding page to cover the legal costs and supporters have pledged more than $8,000.

“It’s heartbreaking and so maddening. … I’m literally having to pay the Fratelli d’Italia for using my photo for hate. I’m disgusted.”