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.
Can musicians and artists legally demand that politicians not use their works?
Recently, the Rolling Stones sent a notice to Donald Trump demanding that he cease using their songs at his campaign events across the country. This is not the first time an artist has objected to a politician using certain songs or related works in conjunction with a political campaign. It is practically a rite of passage for a high-profile politician to anger a musician with a particular choice of campaign theme song. This is an American trend that dates back at least to the early 1980s, when Bruce Springsteen upbraided President Ronald Reagan for using “Born in the U.S.A.” as part of his re-election efforts.
Of course, the Rolling Stones are not an American band. Plus, by now we all know that Donald Trump is not exactly the type of person to back down to what may be a toothless demand. Trump might all too willing to cite 250 years of American history by telling the Rolling Stones to take their demand and shove it. He thrives on this type of attention after all. But that is not the question. The real question is this:
Can Donald Trump (or most any politician) use any song they want for a campaign without obtaining the musician’s permission?
On Sunday, February 7, 2016, the Carolina Panthers® and Denver Broncos® will take the field for the kickoff of Super Bowl® 50. This is the annual showcase game for the National Football League®. In the interim time, the NFL® has assembled an army of lawyers that are ready, willing and able to send a bevy of cease-and-desist letters to any individual or entity that has the audacity to use certain terms or phrases that the league perceives might dilute or infringe famous trademarks that belong to the NFL.
The Super Bowl is practically an American institution, now in its fiftieth year. Many groups contend that the Monday after the Super Bowl should be a national holiday. In fact, a formal petition was once initiated for that very purpose. As a result, you will see and hear numerous advertisements leading up to the Super Bowl promoting numerous goods and services. It is kind of a big deal. What you are unlikely to hear in these advertisements, however, is quite noteworthy. You will rarely hear any advertisement use the term SUPER BOWL.
Why are we reduced to using nebulous terms like “The Big Game” or “The Pro Football Championship” to identify and describe a game? Why is the NFL so trigger-happy in seeking to stop all uses of “Super Bowl” that are not made by direct sponsors of the league or the television broadcast? What is the legal basis for the NFL’s position on this matter? Is it possible that the NFL is wrong? (Spoiler alert: YES!)