On Saturday evening, May 16, 2020, Donald Trump shared
a cartoonish deepfake video to his Twitter account. Trump’s 80 million
followers saw an edited video of the famous speech from the 1996 movie “Independence Day,” only
with the faces of the characters being edited to reflect certain individuals in
politics and pop culture, namely with Trump’s face superimposed over Bill
Pullman’s face (but not his voice).
While this predictably led to outrage from various corners
of the internet, including
from Bill Pullman himself, the most common complaint seemed to be “isn’t
this copyright infringement?” The answer to this question, as always, is: well,
Trump is unlikely to have acquired permission to use this
clip from Disney,
including any right to create or share derivative works, but
whether or not Trump’s uses constitute copyright infringement is not an easy
answer. Copyright is not absolute. There are always defenses to allegations of
infringement. Trump could assert the defense of fair use, specifically the
right to use the work as part of a parody – which the Supreme Court has held is
a fair use of copyright.
If this use is considered a parody, legal precedent holds
that Trump did not infringe any copyrights. What if Trump’s use is instead
considered satire? Yes, there is a difference between “parody” and “satire” and
these distinctions are significant in a copyright fair use analysis.
… and your own concert
video recordings on YouTube could be infringing, too
Prince has been gone for nearly four years. But his presence
still looms large over copyright law. Even in death, Prince’s estate continues
to keep a watchful eye over potential infringers of his musical works. The
latest dispute is a potentially haunting restriction of a popular feature on
YouTube: people posting video clips of live performances. On January 6, 2020,
the federal district court in Massachusetts determined
that Prince’s estate has the sole right to distribute video clips of his live performances
and that uploading certain song clips to a YouTube channel may even constitute
This case presents a multitude of legal issues to assess. Additionally,
this ruling leaves a potential to a technology-based philosophical conundrum for
future copyright cases as they intersect with YouTube style sites. I have a
YouTube channel. On this channel I have posted covers of songs that I play on
guitar. My videos are nothing fancy, but this recent case and others like it
have determined that these videos can actually be infringing works. This
article will try to address these legal landmines while exploring any
possibility for copyright law as it exists today to be reconciled with how
these personal camera-phone videos are treated by the law.
Taylor Swift is one of the most prominent and successful
musical artists of this decade. She has registered over 100 song copyrights
with the U.S. Copyright Office. Of
course, Swift was a teenager when she first entered the music industry. The
stories of exploitation within the industry by record companies, managers,
agents and representatives are vast. It appears not
even Taylor Swift was immune from a rather nasty dispute with the entity
that produced her first six albums.
Over the weekend, Swift sent out a tweet to her 85 million Twitter
While I am very familiar with who Taylor Swift is (though I prefer Tool),
there are enough
stories about her ongoing dispute with Scooter Braun, Scott Borschetta and
Big Machine Records. I
will let someone else explain the gossipy details involved there. Nor will
I perform any deep dives into the private equity acquisition of Ms. Swift’s
former record company that led us to these contractual impasses. Elizabeth Warren
and AOC have
already dipped their toes into that murky water.
Instead, I immediately realized this topic has copyright law
implications. Did you know that most recorded songs have at least two separate copyrights associated with
them? That is partially why there is such drama between Taylor Swift and Big
Machine’s new owners. Ms. Swift, for one, very much does not welcome these new corporate overlords.
July 31, 2019
The music industry has been in the news a lot recently
regarding intellectual property rights and related disputes. Just this week, a
federal jury determined that Katy Perry was liable for copyright infringement.
This tracks with the ongoing
trademark infringement lawsuit filed by Gibson Brands, Inc., which
continues to fascinate me.
Though in my research of these various topics and the
feedback I have received from writing about these legal issues, I have learned
that the terms “trademark” and “copyright” are being used interchangeably by
the public. This is troubling because they are absolutely not the same thing. I
would therefore like to take the opportunity to explain the differences in
these two legal doctrines. Because not all “infringements” are identical acts.
Kawhi Leonard sues
Nike over the copyright to a logo
June 4, 2019
On June 3, 2019, Kawhi Leonard, a professional basketball
player currently with the Toronto Raptors, sued Nike over
the rights to a logo.
Leonard contends he personally created the logo and owns the copyright to it,
but that in 2017, without his knowledge or consent, Nike filed an application
to register the copyright to this logo. From
October 2011 through September 30, 2018, Leonard was a sponsored athlete under
the Nike® brand. According to the lawsuit, he signed a standard “Men’s Pro
Basketball Contract” with Nike to be a sponsored athlete. Throughout the duration
of this relationship, Leonard endorsed Nike products and Nike used Kawhi’s name
and image to promote its products.
This is why the purported rights to the “Leonard Logo” are
Leonard’s lawsuit seeks to resolve who owns the copyright
and possible trademark rights in a logo he claims to have designed himself. The
interesting twist is that even if Kawhi created the logo by himself – that fact
alone does not resolve the dispute.
Copyright law is an interesting subsection of the legal
field. Fun fact: the Founding Fathers cared more about protecting copyrights
than any nebulous free speech rights. The right to copyright is established in
the original U.S. Constitution
enacted in September 1787. The Bill of Rights did not exist until 1789.
Additionally, one of the really cool quirks about copyrights
is how they are created. Copyright exists “the moment it is
created and fixed in a tangible form.” Alas, this cool quirk appears to
only be true in form, but not in substance. For the United States Supreme Court
recently ruled that before you can enforce a copyright, you must first go
through the complete administrative process of registering that copyright with the Copyright Office.
While the Court recognized that it is not an ideal situation, it effectively threw its hands up and said “the law is the law” without really addressing the downstream effects. I would now like to take the time to do what the Court would not, and address the direct effects of this new “registration is required” copyright world.
What does President Trump own?
April 5, 2019
If there is one singular, defining character trait of Donald
J. Trump, it is this: he really, really
likes putting the TRUMP name on things. Hotels, casinos, residential towers, television
shows, books, golf courses, beauty pageants, steaks, universities, business
plans, and on and on. It is kind of his thing. And he is exceptionally good at
marketing the Trump name when he uses it.
The moment Donald Trump ran for president, and was
subsequently elected – the ways he could use market that TRUMP brand grew
exponentially. And I do not use the term “brand” lightly. Because for someone
like me, the underlying question is this: what IP rights in his name and
likeness does Donald Trump still own? Most recently, Trump has put the TRUMP
brand on images of the White House. These images are now subsequently being
sold online and at his various hotels.
have written about some of these issues before,
and once again, I will not try to address any issues with the emoluments clause
of the Constitution. Nor will this article be about the purported morality of
such things, but instead an analysis of what IP rights are available for
protection. Can President Trump own copyrights of his image? Can President
Trump use the TRUMP name as a trademark and protect it like a private citizen?
Can President Trump use White House and U.S. government imagery in tandem with
his name and assert personal rights in these products? It is not such an easy
January 2, 2019
On Friday, December 28, 2018, Nirvana, LLC sued Marc Jacobs International, Saks Fifth Avenue, and Nieman Marcus for copyright infringement, trademark infringement, unfair competition, and false designation of origin under the Lanham Act. The crux of the dispute is over a new line of clothing being introduced by Marc Jacobs dubbed “Bootleg Redux Grunge” that he intends to sell to the public at Saks Fifth Avenue and Nieman Marcus stores. In short, these “grunge” clothes are being marketed to a high-end socioeconomic demographic that is antithetical to everything Kurt Cobain and Nirvana stood for. Because of course they are.
The real dispute is over the appropriation of the iconic Nirvana “smiley face” logo and what Nirvana contends is a derivative, non-transformative use by Marc Jacobs. I will not go too in-depth on the specific claims other than to say: yes, this is an infringement and Marc Jacobs is most certainly trying to associate this clothing line with famous Nirvana trademarks and copyrighted works. It is shameless. Everyone involved should be embarrassed. Yes, including Nirvana’s own lawyers – for reasons I will address.
Of course, I am biased. Nirvana is my favorite musical group of all-time and hearing “Smells Like Teen Spirit” for the first time when I was 14 years old was nothing short of a life-changing experience. Like millions of others, I also own one of the famous “smiley face” t-shirts and other merchandise bearing that image. This is a blog about trademark and copyright law, meanwhile – so let us break down the claims made against Marc Jacobs.
Alfonso Ribeiro sues video game makers over the “Carlton Dance”
December 19, 2018
On Monday, December 17, 2018, Alfonso Ribeiro, an actor best known for roles on “Silver Spoons” and “The Fresh Prince of Bel-Air,” filed two separate lawsuits regarding copyright and publicity rights associated with what is colloquially known as the “Carlton Dance.” Ribeiro sued the makers of the popular Fortnite and NBA2K games for their allegedly unauthorized uses of this dance choreography. His causes of action are based on copyright infringement, violation of publicity rights (California state law), and state and federal unfair competition claims.
The lawsuit(s) begin by asserting that Ribeiro is “an internationally famous Hollywood star, known for his starring role as Carlton Banks from the hit television series The Fresh Prince of Bel-Air and as host of America’s Funniest Home Videos. Ribeiro created his highly recognizable “Dance,” that has also been referred to by the public as “The Carlton Dance,” which exploded in popularity and became highly recognizable as Ribeiro’s signature dance internationally. The Dance is now inextricably linked to Ribeiro and has continued to be a part of his celebrity persona.” The lawsuits later allege that “The Dance has become synonymous with Ribeiro.” In short, these assertions are wildly debatable. Given the national attention this case has received, I would like to look at some of the legal issues raised by these lawsuits and address the possible and likely defenses to Ribeiro’s claims and contentions.