Copyright Trumps This Election Season

Presidential Candidate Donald Trump has found himself in hot water over the unauthorized use of a UK-based photographer’s photograph in his campaign advertisements.

In September, Donald Trump Jr. sent out the following tweet and the attached image:

Photographer David Kittos, a former refugee himself, immediately recognized his photograph, which had been published to media-sharing site Flickr with the rights designation, “All rights reserved.” Kittos says he never gave Trump or his campaign permission to use the photograph.
So he did what any miffed copyright holder would do: he filed a lawsuit against the Republican Party’s presidential nominee.

For those abiding by U.S. Copyright Law, here’s how it usually works: a campaign contacts a copyright holder to license the image for commercial use, usually in exchange for some sort of fee. In this case, however, Kittos claims he would not have provided a license for use of the image, given the advertisement’s text and Kittos’ own background.

The plaintiff also alleges secondary infringement, claiming the campaign strategically used the image on social media platforms to incite “an epidemic of third-party infringement of the photograph.” Use of social media reflected the intention of the Trump campaign that the photo would be widely shared through re-tweets which would reproduce the image and accompanying text on Twitter and other social media platforms like Facebook and Pinterest, and indeed the plaintiff alleges that “thousands of individuals” re-published the advertisement without authorization from the copyright holder. “The effect of this iterated unauthorized reproduction and redistribution is the rampant viral infringement of Plaintiff’s exclusive rights in his Photograph,” the complaint reads.

Kittos now asks for unspecified damages–monetary damages totaling actual damages and any profits relating to the unauthorized use– and, seemingly more importantly on a personal level, seeks an injunction for further use of the photo, according to the complaint filed October 18.

What makes matters worse is that in June Trump’s camp settled a suit over the unauthorized use of a photograph of a Bald Eagle with two Denver-based photographers.  The settlement terms have not been disclosed.

The moral of the story is this: If you value your work, file a copyright so you can protect it.  Make sure ALL members of your marketing team, from directors down to interns, know the do’s- and don’ts of copyright law.  And if you need help explaining it, come see us here at The Creekmore Law Firm.