Generic Fair Use

... where pop culture meets intellectual property law

Tag: fair use

“You Really Think You Can Fly That Thing?” On Donald Trump, Independence Day Deepfakes, and the Copyright Defenses of Parody and Satire

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, maybe.

Trump is unlikely to have acquired permission to use this clip from Disney[1], including any right to create or share derivative works,[2] 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.

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Coronavirus: Copyright Law and Revisionist History on the Internet

The only relevant thing in the news these days is information about COVID-19, the novel coronavirus. More formally known as coronavirus disease of 2019 and the underlying virus causing it: severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2). There has not been much else worthy of writing about or reading about for a couple of months now. This is for good reason. COVID-19 is deadly serious and not to be underestimated.

Someone did not get this memo to multiple talking heads on television and the internet. Truth be told, I am not here to litigate the underlying science of the coronavirus. But I am absolutely here to dunk on those who initially went out of their way to downplay the pandemic only to later engage in lazy revisionist history. There are too many to name, but one in particular caught my attention. Because this person brought the law into it; thus bringing it directly into my area of expertise.

Hello, Dr. Drew. Please take a seat while we discuss “copywrite” laws.

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Something in the Way: Online Guitar Tabs and Copyright Law

Americans buy millions of new guitars every year.[1] Many of these are “entry-level” guitars intended for those trying to learn a new instrument. Yet somewhere in the range of 90% of new guitar players quit trying within the first year. When the electric guitar first became popular in the 1950s and 1960s, there were few ways to accelerate the learning curve. By the late 1990s, along with the advent of the internet, a tool for learning guitar and how to play popular songs reached the masses: guitar tablature or “tab” for short. The concept of tablature was not new, but the ability for an individual to read and acquire tabs through the internet was groundbreaking.

Guitar tab is essentially a shorthand method for transcribing the specific notes and chords of a song in a format that mimics the finger positions on a guitar’s fretboard. Instead of having to learn to read and translate formal sheet music, tablature is simplified. Each note is represented by a number that corresponds to a particular string and location on the fretboard. The beauty of guitar tab is that most anyone who plays guitar can transcribe a song into this format and share it with others as a teaching tool.

Naturally, it did not take long for the internet to respond in kind. Sites with collections of thousands of tabs populated the web seemingly overnight. To the surprise of no one, this also caught the attention of the music publishing industry. And their lawyers. Copyright law concerns threatened to shut down online guitar tab publishing in its entirety.

My question today is simple: while guitar tablature is likely a “derivative work” restricted by copyright law – should it be? Or should there be some sort of expressed fair use exception for guitar tablature? And if not, why not?

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Hey, Stop Using My Song For Your Campaign!

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.[1]

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?
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Why the NFL does not want you to say “S— B—”… and how the NFL may be wrong

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.[1]

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!)

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