Did the Trump campaign infringe on a photographer’s copyright with its “Skittles” post? And how does the political nature of the post impact this copyright issue?
The Facts
On Monday, September 19, 2016, Donald Trump, Jr. posted the following tweet:
This image says it all. Let’s end the politically correct agenda that doesn’t put America first. #trump2016 pic.twitter.com/9fHwog7ssN
— Donald Trump Jr. (@DonaldJTrumpJr) September 19, 2016
The BBC has reported that the original photo of a bowl of Skittles was taken by David Kittos. Kittos, as a child in the 1970s, came to the U.K. as a refugee from Cyprus. Kittos posted the image to Flickr in 2010. The post includes a copyright notice, ©, and states “All Rights Reserved.” Flickr’s Terms of Service state than an All Rights Reserved claim means the following:
You, the copyright holder, reserve all rights provided by copyright law, such as the right to make copies, distribute your work, perform your work, license, or otherwise exploit your work; no rights are waived under this license.
Need a refresher on copyright? Check out my podcast episode on copyright 101
Barring other facts coming out, it appears clear that Kittos is the copyright holder for the Skittles photo. Kittos told the BBC:
“This was not done with my permission, I don’t support his politics and I would never take his money to use it…I have never put this image up for sale. This was not done with my permission, I don’t support Trump’s politics and I would never take his money to use it.”…Mr Kittos is unsure whether he will take action over the use of his image by the Trump campaign.
Analysis
Works which are protected by copyright in the U.K. enjoy copyright protection in the U.S. due to international treaties such as the Berne Convention.
Side note: this is why it’s important to keep track of how international trade deals affect intellectual property. See my recent blog posts TPP IP: Copyrights and Trademarks in the Trans-Pacific Partnership and What Does Brexit Mean for Trademarks?
So it seems clear that Donald Trump, Jr. infringed Kittos’ copyright by using the Skittles photo without his permission. Just because Trump, Jr. did so on Twitter does not mean that copyright law doesn’t apply. It also doesn’t matter if Trump, Jr. was just copying an image that someone else had misappropriated.
The next question is whether Trump, Jr. bears any legal liability. If Kittos sues Trump, Jr. in the U.S. (where the alleged infringement occurred), will Trump, Jr. have to pay damages? His strongest defense will be that the unauthorized use of the Skittles photo was permitted under the U.S. Copyright Act’s Fair Use provisions.
My regular readers will know that this is where I say that fair use is complicated and that even seasoned IP attorneys often disagree about whether a court will determine that a challenged use is “fair.” (Look for a forthcoming podcast episode in which I get into an impassioned debate with a fellow attorney on this very topic.) For a refresher on the basics, check out my podcast episode “What Is Fair Use?”
Fair use is an attempt to strike a balance between the monopoly granted to copyright owners and the free speech principles embodied in the First Amendment. Fair use is a defense to a claim of copyright infringement. So it works like this: you infringe on someone’s copyright, she sues you, you claim fair use as your defense, and a court determines who’s right. There no way to “claim” fair use until you’ve been sued.
The first of four factors to be considered in a fair use analysis is the purpose and character of the use. There is no question that the nature of Trump, Jr.’s message was a political one. It was explicitly about an important and prominent issue in the current Presidential campaign. If that’s not political speech, I don’t know what is.
Throughout most of U.S. history, political speech has been granted the highest level of protection. It follows, then, that a substantial amount of scrutiny must be applied when anyone tries to apply copyright law in such a way that the result (intended or otherwise) will be to punish or otherwise regulate objectionable speech. That’s not to say that copyright goes out the window whenever a political issue comes to the fore. But it’s important to carefully weigh the need to communicate about political issues against the important protections afforded to creators under copyright law.
Kittos’ personal story should not determine whether or not Trump, Jr.’s unauthorized posting of Kittos’ image was a fair use. The court of public opinion may rightfully find that Trump, Jr.’s tweet was foolish and offensive. But a court of law should focus on Kittos’ copyright claim and the importance of free communication about matters of public interest.
In this case, it seems that Trump, Jr. could have easily purchased a stock photo of a bowl of candy from any number of agencies. Or he could have taken the photo himself, or hired a photographer to do so. This is exactly what all that campaign money is for. So I’m inclined to come down on the side of the copyright holder in this case, but it’s a close call.
Finally, this should be clear to anyone who knows me or follows me online, but I find Trump, Jr.’s message objectionable. #ImWithHer
Regarding the Skittles image in this blog post:
| This file is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license. | |
| Attribution: PiccoloNamek at the English language Wikipedia |
