#ThinkBeforeYouTweet: Skittles Photo Lands Trump Campaign in Hot Water

Many internet and social media users seem to have a preconceived notion that content appearing on websites, in blogs, or in posts is free and available for unfettered use. Nothing could be further from the truth, as the recently filed copyright infringement lawsuit against Donald Trump’s campaign over his son’s Tweet picturing a bowl of Skittles shows.

The complaint, filed on October 18, 2016, is interesting in a few respects. First, the plaintiff, photographer David Kittos, labeled the campaign organization as essentially a serial infringer when he cited Trump’s “history of being accused of using works without the authorization of the copyright owner…including, but not limited to being previously sued in 2016 for copyright infringement for the unauthorized use of a photograph of an eagle as part of another campaign advertisement.”

Second, the complaint points out that the essential purpose of tweeting in connection with a political campaign is “the viral promotion of candidates,” which in this case occurred due to extensive retweeting of the photo. In a copyright analysis, retweeting amounts to further reproduction and distribution of a work. The plaintiff therefore alleged not only direct infringement for the original tweet, but also contributory and vicarious infringement to cover the third-party infringements that occurred when the photo was retweeted by Trump’s many followers.

One other interesting takeaway: for those observers who might say that “it’s just a picture of a bowl of candy,” the plaintiff described in flowery terms the artistic considerations that went into the photo:

“Each piece of candy in the Photograph is randomly placed inside of the bowl, allowing their bright and boastful colors to become the centerpiece of the image. It would be beyond difficult to accurately recreate such a vivid image, given the challenge of replicating the exact lighting and exposure of the image, as well as assembling the arrangement of the candies.”

This language was not included to advertise the photographer’s skill, but rather to thwart any attempts by Trump’s lawyers to claim that the photo lacks the requisite minimal level of creativity necessary for copyright protection.

Trump’s lawyers will probably try to drag the suit out as long as possible to bleed the plaintiff’s resources; the photo was not registered within the three-month period  that entitles a copyright owner to receive statutory damages or attorney’s fees, so actual damages and profits are all the plaintiff can be awarded. But as innocuous as use of a photo in a tweet sounds, the fact remains that a photographer created the photo in question and the photo was reproduced and distributed without his permission.

Photo entitled "(Skittles)a handful" by David Adam Kess (CC BY-SA 4.0 via Wikimedia Commons). Thousands of dollars in lawyers' fees were saved by the 85 seconds it took the writer of this post to find and legally secure use of this photo.

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