Phoenix Police Issues Totally Bogus Cease & Desist To Trump Campaign Claiming Copyright Infringement

from the not-how-it-works dept

Mon, Oct 3rd 2016 8:27am — Mike Masnick

Yes, yes, we know that resorting to copyright to take down speech from a politician you don't like is pretty common. Most of the time it involves musicians not liking politicians playing songs, but lately we've seen some other ones as well. Last week, for example, we wrote about a photographer successfully using the DMCA to remove the now infamous image of a bowl of Skittles that Donald Trump Jr. tweeted.

The latest, however, is even more ridiculous. The city of Phoenix, Arizona, has sent a cease & desist letter to the Donald Trump campaign, arguing (incorrectly) that Trump was violating their copyrights and publicity rights, by using imagery of Phoenix police officers in an advertisement (first reported by a local NBC affiliate in Arizona). The ad is available on YouTube, and don't blink or you might miss the Phoenix police officers. It's a pretty generic politician ad, frankly, but there's a very brief shot of Trump shaking hands with some Phoenix police officers on a tarmac somewhere (I'm guessing Phoenix...). It appears to last all of about a second.

And a city attorney named Brad Holm in Phoenix, who I don't think understands the law, has decided that this shall not stand.

For the reasons set forth below, Phoenix demands that the campaign, the candidate, and all of their affiliates and agents immediately (today) take down the ad from every medium, cease using the ad under any and all circumstances, and desist violating Phoenix’s intellectual-property rights in copyrighted materials.

Uh, what? Remember, this is a one-second clip that flashes by in an instant, where no one is going to even recognize that the cops are Phoenix cops. Can't wait for the "details" below:

First, Phoenix has not approved—and will not approve—the creation or use of any media bearing the faces and likenesses of its on-duty police officers in any political advertisement for any political candidate. The officers were unaware that they were photographed and videotaped, and they did not consent to the use of their on-duty images in any Trump (or other) campaign advertisement. The officers depicted in the ad were in uniform precisely because they were on duty performing work for Phoenix at the time. In this context, the ad unmistakably and wrongfully suggests that Phoenix and the officers support or endorse Mr. Trump’s campaign. That is not the case. Neither Phoenix nor the Police Department support or endorse any candidate for President of the United States or any other political office.

First, they don't need to consent to their on-duty images being used in this manner. They are out in public and they were videotaped in public. As has been explained at great length in many other contexts (usually in the filming of police misconduct), filming police in public and making that video available is perfectly protected free expression under the First Amendment. There is no "likeness" right issues here, as that's generally only about commercial style speech.

Second, nothing in the ad suggests that the Phoenix police endorse Trump. It suggests they were on the tarmac where Trump was and they were doing their job (good for them...) and Trump shook their hands, because that's what people running for President do.

And then it gets worse:

Second, Phoenix has not consented to the Trump campaign’s use of Phoenix’s legally protected intellectual property. The Police Department’s uniforms—specifically the badge and insignia patches—belong to Phoenix and constitute protected intellectual property of the City. Phoenix owns the exclusive right to use these distinctive designs under federal and state law, including the U.S. Copyright Act. Phoenix strictly regulates the use of its intellectual property. And Phoenix does not allow any person, entity, or political campaign to appropriate or otherwise use its protected materials or replicas for any private purpose such as a campaign ad.

Nah. I mean, okay, it is true that the Copyright Act only exempts federal government agencies from getting a copyright over their creative works, and does not necessarily apply to state or local governments. But it's still a stretch for the city of Phoenix to run around claiming a copyright on its uniforms (uh... uniforms are not subject to copyright, dude). While perhaps the city could claim copyright in the police badge and insignia, there is no way that this particular use isn't covered by fair use. It involves a barely recognizable snippet of a public video of police officers, used in a political campaign video. That's like textbook fair use.

As owner of this intellectual property, the City of Phoenix hereby orders the Trump campaign to immediately cease and desist from your unauthorized use of Phoenix Police Department uniforms, bird emblem, police badge, police insignia patch, and all other imagery of official City of Phoenix materials and on-duty employees.

That's not how the law works. Shouldn't a lawyer understand this?

All existing copies of photos, videotape, and other images must be immediately removed from the public domain.

Oh, look. The Phoenix city attorney who doesn't understand copyright law also doesn't know what the public domain means. Shocker.

The Phoenix City Manager has authorized me to pursue all legal remedies necessary to stop the Trump campaign from using the City’s intellectual property. The available remedies include both legal and equitable relief. Please contact me immediately and advise me of the steps that you are taking to comply with this letter’s demands. I trust that further action will not be necessary.

If it's true that the city has authorized pursuing legal remedies, then the city has agreed to waste a ton of money in an effort that will likely end in a serious judicial smackdown, and possibly Phoenix taxpayers having to shell out money to the Donald Trump campaign to pay for legal fees.

I can totally understand why the City of Phoenix might not want to be associated with Trump or his campaign. And I can certainly understand why a police department wouldn't want to endorse or even be seen as endorsing any particular candidate. That all makes sense. But (1) copyright is not the tool to use for that and (2) there is no copyright infringement here at all. Just a clueless, ignorant city attorney who is trying to abuse copyright law to do something it doesn't do.

Phx-Cease-Desist-to-Trump-Campaign (PDF)Phx-Cease-Desist-to-Trump-Campaign (Text)

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Filed Under: brad holm, copyright, donald trump, fair use, first amendment, phoenix, phoenix police, publicity rights

22 Comments

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Anonymous Coward, 3 Oct 2016 @ 8:32am

good stuff...
I hope Trump is DMCA'd so much he is nauseated.
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- John Cressman, 3 Oct 2016 @ 8:37am
  
  Re: good stuff...
  Nice... you hope someone abused the system, because it suits your purposes. Great logic. what happens when someone abuses the system and YOU suffer?
  
  Abuse is abuse.
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  - Anonymous Coward, 3 Oct 2016 @ 9:58am
    
    Re: Re: good stuff...
    Not him but clearly nobody would ever do that to him. After all he's on the right side of history and it's 2016.
    
    I mean, come on!
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  - Anonymous Coward, 3 Oct 2016 @ 10:39am
    
    Re: Re: good stuff...
    what happens when someone abuses the system and YOU suffer?
    
    Nothing. Just as it's designed.
    
    Which is why things like this happening to assholes like him is so refreshing. It's the system collapsing on itself.
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    - Anonymous Coward, 3 Oct 2016 @ 11:05am
      
      Re: Re: Re: good stuff...
      BINGO!!!
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  - Anonymous Coward, 3 Oct 2016 @ 10:58am
    
    Re: Re: good stuff...
    Man you got up out of the wrong side of the bed today.
    
    He needs to be sued because he abused DMCA and if he were to become President then maybe there is more than a pie in the sky chance that he might try to change the bullshit DMCA laws.
    
    Until then... every smarmy bastard running for office should be thoroughly "AND I MEAN THOROUGHLY" abused by DMCA take-downs.
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Chris-Mouse (profile), 3 Oct 2016 @ 8:49am

Just a clueless, ignorant city attorney who is trying to abuse copyright law to do something it doesn't do.

More likely it's a case of an experienced lawyer who has learned that the threat of a lawsuit is enough to get people to do what you want, even if the lawsuit itself is totally bogus.
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Michael, 3 Oct 2016 @ 8:57am

All existing copies of photos, videotape, and other images must be immediately removed from the public domain

Perhaps he thinks he is in the UK.
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Anonymous Coward, 3 Oct 2016 @ 8:57am

Second, Phoenix has not consented to the Trump campaign’s use of Phoenix’s legally protected intellectual property. The Police Department’s uniforms—specifically the badge and insignia patches—belong to Phoenix and constitute protected intellectual property of the City. Phoenix owns the exclusive right to use these distinctive designs under federal and state law, including the U.S. Copyright Act. Phoenix strictly regulates the use of its intellectual property. And Phoenix does not allow any person, entity, or political campaign to appropriate or otherwise use its protected materials or replicas for any private purpose such as a campaign ad.

So... I guess the next time a politician arrives in Phoenix and needs security, the police should all just show up naked? You know - just in case they get inadvertently filmed and stuck in an advertisement?
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Ben S (profile), 3 Oct 2016 @ 9:16am

Spelling error
Masnick, I thought you should know that you have misspelled Phoenix a lot, you keep spelling it Phoneix in your post. Once in the title, and three times in the second paragraph.
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timmaguire42 (profile), 3 Oct 2016 @ 9:16am

A classic and on point response
"I feel that you should be aware that some asshole is signing your name to stupid letters."

http://www.snopes.com/business/consumer/browns.asp
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Ben (profile), 3 Oct 2016 @ 9:53am

That's not their job...
All existing copies of photos, videotape, and other images must be immediately removed from the public domain.
Apparently that's the job of Congress and the Copyright Office; only they can retroactively re-instate copyright.
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Cops are amazing, 3 Oct 2016 @ 10:20am

I wonder what would happen if a non-retard tried to become a cop, would be an interesting experiment.
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- Anonymous Coward, 3 Oct 2016 @ 10:43am
  
  Re:
  they get told they are too smart for the job and are refused the job because they would get bored.
  [ link to this | view in chronology ]
- Anonymous Coward, 3 Oct 2016 @ 11:09am
  
  Re:
  Anyone smart enough to be an honest cop can already see that honesty and integrity are not wanted.
  
  All other applicants with integrity applying to BRING such honesty and integrity to the force would be denied or marginalized by the rest.
  
  The history of the Police is such that your job is to be a mindless servant of the state, destroying, hunting, and harassing its enemies and oppositional malcontents.
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Norahc (profile), 3 Oct 2016 @ 10:46am

Setting precedent
Actually, the City is just trying to set a precedent to DMCA any videos of their police department they don't like. That way, the next time an "unofficial" video of a police shooting emerges, they can DMCA away.
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Regret, 3 Oct 2016 @ 11:28am

Streisand effect anyone?
Huh.
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Uriel-238 (profile), 3 Oct 2016 @ 1:02pm

This looks to me like a symtom of established (toxic) culture.
Due to so many incidents of the DMCA being used as a device of censorship (despite that the private activism sector has rallied to fight these attempts) it become established in common culture that This is what the DMCA is for. If you want to tell someone to shut up or I'll sue, and there's no clear legal cause to do so, the DMCA is the first handful of straws we grasp.

It's part of the culture, and it's going to take some negative consequences for false claims before we can change that culture.

But since it's a device by which monied interests can bully the shit out of less affluent interests, and our big media friends love, love, LOVE! DMCA takedowns, it's not going to be easy to pass any anti-abuse bills.
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Uriel-238 (profile), 3 Oct 2016 @ 1:10pm

We also really need a public advocate for public interests.
To me, this sounds like the sort of thing that the Attorneys General should be doing when they're not trying to steal people's stuff and ratchet up crime convictions: They should also be defending the public domain from getting re-copyrighted, and looking to return copyright limits back from its ridiculous levels.

This may go on my list of things-that-Uriel-preaches-at-the-choir-too-much.
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Belinda Corbett, 3 Oct 2016 @ 3:31pm

For someone who sues at the drop of a hat
Ok will accept that they are police and their small presence on the film is fleeting. However if people can make the jump that Obama is really not American born and is really a Muslim, it would be fair to say that the Phoenix PD backs Trumps policies. If I lived in that state, and either way you thought of him, you would be totally rapt that the Phoenix Police will give you some law and order, and if I was black or brown I would be checking where I can buy a bulletproof vest. In the end this in not Trump's fault directly but surely someone in campaign thought should we just run this by a lawyer to be sure. Trump goes banana's if he thinks the name Trump has been used with getting some bucks
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Châu, 3 Oct 2016 @ 4:37pm

Kil DMCA
First thing Trump should do if become US president, kill DMCA. Serious, any thing get money from tax money must become public domain. City claim copyright is theft from tax payers. misuse tax money people have right not pay tax to city.
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John Mayor, 3 Oct 2016 @ 4:49pm

TITY for TATtered Campaign
This could be an attempt by Trump sympathizers at the City of Phoenix to "contribute" to the Trump Campaign, by initiating a legal action that these foreknew couldn't possibly win!... and which would eventually translate, to a "donation" to the Trump Campaign! Otherwise!... maybe the American Bar Association should send off to the City of Phoenix... and to its legal counsel, in particular!... a Cease and Desist letter, to end their practice of impersonating members of the American Bar Association!
.
Please!... no emails!
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