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.
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