Donald Trumped by copyright holder?

It seems that no news item is complete at the moment without a reference to controversy-courting US Presidential candidate, Donald Trump. Even articles about Intellectual Property law are not exempt.

A UK-based photographer, David Kittos has issued copyright infringement proceedings against "The Donald," his son Donald Trump Jr. and his running-mate Mike Pence over their use of a photograph of a white bowl containing sweets resembling Skittles in a controversial Tweet by Trump Jr which read;

 "If I had a bowl of Skittles and I told you just three would kill you. Would you take a handful? That's our Syrian refugee problem."

The tycoon's son then added to this Tweet with the additional comment: "This image says it all. Let's end the politically correct agenda that doesn't put America first."

This was then retweeted by his father and Mr Pence, and of course became the source of one of the many controversies around Mr Trump's campaign.

Mr Kittos has asserted that he owns (and has registered in the USA) the copyright in the photograph (which is entitled "White bowl of candy"), and that he created it in 2010.  Unlike the UK, the US has a system of registration for copyright works which acts to put potential infringers on notice of the existence of copyright and enhances the ability for copyright holders who have registered their rights to claim damages.

Mr Kittos particularly objected to the use the photograph by the Trump campaign because his own family were previously refugees from Cyprus and in his US lawsuit he describes the manner in which it was used as "reprehensibly offensive."

The image has since been removed from Twitter. Mr Kittos claims that this would not have happened had it not been for the insistence of his legal representatives, who state in the lawsuit that "On information and belief, many thousands of individuals across the US are now reproducing, publicly displaying, transmitting, and otherwise using the photograph as part of promoting Trump and Pence, without plaintiff's authorisation,"

Similar to the remedies that would be available to him in the UK, Mr Kittos is seeking injunctive relief, damages, an account of all profits derived from the use of the copyrighted image. Unlike in the UK, however, his is also able to seek a jury trial for a copyright infringement matter and US juries have been known to award considerable "punitive" damages in such cases where the claimant has been successful.

In our own copyright law (I cannot speak for the relevant US provisions) a copyright holder has, in addition to those rights granted to him by the Copyright Designs and Patents Act 1988 certain "Moral Rights" which include the "right to object to derogatory treatment" of their copyright work.

To base a claim on this, a claimant has to show that the treatment of [their]  work "amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author." One might query therefore whether, had Mr Kittos brought a claim in the UK under similar circumstances, this might have been one avenue of redress available to him.  There is very, very little reported case law on this or other moral rights, and such as there is suggests that it is doubtful whether context of use alone can amount to a "treatment" of the copyright work (compared to, for example, distorting or editing the work in some way).

Nonetheless, in the United States this claim will now no doubt become part of the growing collection of side-shows and controversies surrounding the present election campaign!

Posted on: 20/10/2016

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.

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