A judge has issued a split decision in a lawsuit filed by a gay couple whose engagement photograph was used without their permission by an anti-gay campaign.

Back in 2012, the Southern Poverty Law Centre filed the lawsuit on behalf of Brian Edwards, 32, and Tom Privitere, 37, over a photograph taken of them holding hands and kissing, with a New York backdrop.

The copyrighted photograph was used in a campaign by Virginia-based Public Advocate of the United States, deemed a hate group by the SPLC, which attacked State Senator Jean White, a Republican who voted for a civil marriage bill which failed at the state house.

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The original image (Kristina Hill)

It was also used on leaflets for a second campaign for which leaflets were sent to over 4,700 voters.

A Colorado US District Judge on Monday issued the split decision, that the group’s use of the photo was a matter of public interest, and protected by the First Amendment, but that the couple may have a legitimate copyright infringement claim.

The president of Public Advcoate Eugene Delgaudio, said the judge’s ruling was a “tremendous victory”.

Southern Poverty Law Center staff attorney Anjali Nair, acting on behalf of Edwards and Privitere, said the couple were disappointed at the ruling but glad the copyright claim could now go to court.

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The doctored image used by the campaign

“We are happy the court has ruled that the defendants’ unauthorized use of the engagement photo may violate the copyright laws and that the copyright claim may proceed to trial,” Nair said in a statement.

“We are disappointed with the court’s legal ruling on the misappropriation claim and remain convinced that the misuse of our clients’ private engagement photo was wrong.”