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.
So you want a new logo for your business. That’s great! Instead of hiring a design firm, you decide to hold a contest so amateur designers near and far can propose logos. Maybe you’re even going through a website, such as 99designs.com. It seems like a win-win situation: your company gets a plethora of ideas that you wouldn’t get with one designer and amateur graphic artists get a piece for their portfolio and a chance at major exposure! What could go wrong?
Actually, a lot.
While at a very superficial level design contests seem like a good idea, any analysis or evaluation will start to turn any legal counsel’s stomach. Here are just a few issues:
1. It’s probably an illegal contest.
As profiled by my colleague Keith Finch in his latest article, running a contest opens a huge can of worms. And guess what? Those rules apply to ANY contest, including one on logo design. Things get very complicated, especially if you’re working with a contest spanning multiple jurisdictions, as internet logo contests usually do. But wouldn’t a website whose sole purpose is to run logo contests do all of this for its users? I’m afraid not.
To run a contest legally, you’ll need to shell out thousands in legal fees for correct “Terms and Conditions” written in exactly the right size and type of font required by the contest-governing overlords; you’ll have to put up cash bonds in Florida and New York; you’ll need to obey state and national consumer gaming laws meant to protect consumers from not-so-honest award disbursement, and more. My hunch is that it’s more financially prudent to hire two or three designers.
2. You [probably] won’t own the copyright.
As lawyers, we see this ALL THE TIME: A company hires a designer/ design firm to make its logo or rework its branding. The designer creates an awesome logo. The company is thrilled. Both parties go on their merry way.
The company doesn’t own the logo.
But the company paid for it! Shouldn’t that mean it’s a work made for hire and the copyright automatically belongs to the company?
Actually, it doesn’t. A work made for hire only applies when the designer is an employee of the company. An independent contractor or freelancer is NOT. This situation is legally identical to picking a logo from a design contest. The designer is not an employee—and arguably not even an independent contractor—and therefore no transfer of copyright occurs. In this situation, you need a separate well-drafted copyright transfer agreement, which doesn’t come with most logo competitions.
This means that every time you use, print, copy, reproduce, or alter that logo, you’re committing copyright infringement. Why does this matter? Because at any time, that designer could decide he wants to invoke his rights and prevent you from using that design, and in essence hold you captive until you pay some sort of ransom fee. If he’s registered the copyright in the mark, there are even treble damages and attorneys fees you could have to pay. It’s big money that could cause a huge headache, just for forgetting to get a copyright transfer agreement signed.
3. The design could be a copy.
When we draft design agreements, we make sure there is a portion of the contract that ensures the deliverables are original, non-infringing works. This is because a client using the designs could actually be held responsible for an infringing logo created by a designer. This is a huge problem on logo contest sites, and there is no way to ensure localized design contests don’t run afoul of these rules as well.
We like to add indemnification clauses to our client’s designer agreements that make the designer responsible for indemnifying (e.g. paying for the cost) our clients’ legal fees or costs of defending a suit for copyright infringement if the deliverable’s design is misappropriated.
Even a quick look at design contests presents myriad issues. You’ll get more bang for your buck hiring one or even two designers to produce and design deliverables you need. If you do decide to run a contest, make sure you talk to your friendly neighborhood attorneys who can ensure you’re not slapped with fines or even possible jail time for running an illegal lottery under federal and state guidelines. We’ll help you out!
ESPN won’t be the first to take issue with BMI, Broadcast Music, Inc., over their music licensing and royalty collection terms for public performance of music in their artist catalogs. BMI is one of two major professional organizations managing performance royalty rates for musicians and their works, the other being ASCAP, the American Society of Composers, Authors and Publishers with catalogs of thousands of artists and songs. Think you can simply play your iTunes downloaded music in your workplace without a license? Think again. We have addressed this topic before as many a business owners has received the unpleasant demand letter for licensing fees under either BMI, ASCAP, or the smaller performance rights organization called SESAC, originally the “Society of European Stage Authors and Composers”. Now, however, ESPN is forging a battle in the music industry competition referred to as rate-setting and contending that BMI’s rates are disproportionate to EPSN’s payments to performers and publishers and are, therefore, unreasonable. In fact, ESPN has asked the Court to weigh in on this one.
If you haven’t been paying attention, you may have missed the struggle raging over the artist formerly known as Ke$ha, now the face of the #freeKesha movement.
A simplification of the backstage war being waged over the popstar’s music goes like this: Kesha filed a lawsuit against Lukasz “Dr. Luke” Gottwald, claiming he abused the young popstar. Her 28-page complaint alleged that the older man drugged her, sexually abused her, threatened to take away her publishing rights, and verbally abused her to the point of an eating disorder. The suit, filed in a civil court rather than the subject of a criminal investigation, seeks to terminate her contract with Gottwald and his label, Kemosabe Records. Gottwald, in turn, claims that the suit is a way for Kesha to wiggle out of contracts obligating her to his label. The popstar is obligated to six albums; two have been completed. On top of this allegation, Gottwald has filed a countersuit for defamation and extortion (among several others). After a brief stint in California courts, the case was moved to New York due to a forum selection clause. Several of Gottwald’s claims against the star and her management have been dismissed.