Skittles Photographer Actually Sues Trump Campaign Over Infringement

from the can-i-introduce-you-to-fair-use? dept

Thu, Oct 20th 2016 6:25am — Mike Masnick

A few weeks ago, we wrote about how David Kittos was threatening the Trump campaign with a copyright infringement lawsuit after Donald Trump Jr. tweeted out a really dumb image involving a bowl of Skittles and a ridiculous statement about refugees.

There was some irony there, in that Kittos himself was a refugee from Turkish occupation in Cyprus and escaped to the UK. His photo is still up on Flickr, and does say that it's "all rights reserved." At the time, Kittos only hinted at a lawsuit, but also said "I don't know if I have the patience" to follow through on a lawsuit. We did notice that a week or so later, Twitter had removed the image after receiving a DMCA takedown notice from Kittos.

So that was at least some indication that Kittos may have found some lawyers to help him. And now those lawyers have actually sued the Trump campaign for copyright infringement. You can read the whole lawsuit, if you'd like. He's suing the Trump campaign, along with Donald Trump Sr. & Jr. and Mike Pence personally.

Some interesting points about the lawsuit. Kittos did register the image... but not until after all this went down. The Copyright Office lists the registration date as October 3rd of this year:

That's why the lawsuit asks for "actual damages" rather than statutory damages (you can only ask for statutory damages if the work was registered prior to infringement). But good luck showing any actual damages.

The bigger issue, though, is that this is almost certainly a bogus copyright infringement case. The Trump campaign has a pretty strong fair use argument, helped along by Kittos himself originally admitting that "I have never put this image up for sale" and "I was just experimenting with something called off-camera flash." There goes prong four of the fair use test, the "effect on the market," when the plaintiff has already admitted there never was a market. Also, the lawsuit itself makes it pretty clear that the lawsuit isn't really about copyright infringement, but about Kittos being upset about the message of the Trump meme.

I get that. I mean, I agree that the tweet is stupid and ignorant. But that's not the role of copyright. And yet, throughout the lawsuit, Kittos' lawyer keeps pointing to the "offensive" nature of the content as the reason that it's infringement. But that does not matter at all for a copyright infringement claim.

The unauthorized use of the Photograph is reprehensibly offensive to Plaintiff as he is a refugee of the Republic of Cyprus who was forced to flee his home at the age of six years old.

That's an interesting news hook, but it has nothing to do with copyright.

Also, given that this is someone trying to silence a political campaign, it seems fairly obvious that this is actually a SLAPP lawsuit, rather than a legitimate copyright lawsuit. Of course, that may explain why the lawsuit was brought in Illinois (remember, Kittos is in the UK, and the Trump campaign is certainly not based in Illinois). Illinois has an anti-SLAPP law, but it's been interpreted narrowly, and it's unclear if it would be allowed here -- though it's possible. The key case, Sandholm v. Kuecker, does include a test on "the plaintiff's intent in bringing the lawsuit." If it's to stifle speech or participation in government, then the anti-SLAPP law may apply. So Kittos may actually end up in trouble himself for filing this lawsuit. Notably, if the Trump campaign argues that this is a SLAPP suit and it wins, Kittos himself may be responsible for Trump's legal fees.

In other words, while I can understand why Kittos may have filed this lawsuit, it seems like someone may have given him some bad advice, and it may cost him.

Of course, he may be hoping that the Trump campaign just pays him off to go away. After all, the lawsuit mentions another copyright lawsuit filed against the campaign earlier this year, over a bald eagle photo -- and in that one, the Trump campaign settled the case, though no details were given on how it was settled.

Trumpskittles (PDF)Trumpskittles (Text)

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Filed Under: anti-slapp, censorship, copyright, david kittos, donald trump, donald trump jr., fair use, illinois

19 Comments

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sophisticatedjanedoe (profile), 20 Oct 2016 @ 6:40am

How badly copyright law is fucked up? I'm rooting for Trump in this dispute.

That's how.
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- Anonymous Coward, 20 Oct 2016 @ 6:53am
  
  Re:
  Came here to express almost the exact same sentiment only to find it already posted!
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- Jeremy Lyman (profile), 20 Oct 2016 @ 8:04am
  
  Re:
  Maybe it's filed ironically to force trump in to using anti-SLAPP legislation he's normally whining about.
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- DannyB (profile), 20 Oct 2016 @ 10:32am
  
  Re:
  Copyright law being f'ed up doesn't mean that there aren't legitimate copyright claims of infringement. This is one. It may be petty, but it is technically correct.
  
  Trump, like everyone else, should only use images that they have an actual license to use. Even if it is a Creative Commons, or open source, or a commercial license, or other type of license. And you must comply with whatever license that allows you to use the copyrighted work.
  
  Why should this be different for Trump?
  
  Oh, wait. Nevermind. The rules don't apply to him.
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sophisticatedjanedoe (profile), 20 Oct 2016 @ 6:48am

Venue
To say that the following justification for the venue is weak would be an understatement:
1. This Court has personal jurisdiction over Defendants Trump for President, Inc., Trump Sr., Trump Jr., and Pence because they do business and/or transact business within the State of Illinois. Defendants Trump for President, Inc., Trump Sr., Trump Jr. and Pence have conducted tortious acts of infringement in the Northern District of Illinois, conducted acts directed at this District, and/or transacted or done business within this District.
2. Defendants have social media profiles wherein they have individuals who follow their social media posts (hereinafter “Followers”). Defendants have Followers in Illinois and in the Northern District. Defendants actively sought to campaign in the Northern District of Illinois and have scheduled and promoted rallies in support of the same.
Ohai, John Steele & Guava LLC.
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Padpaw (profile), 20 Oct 2016 @ 7:17am

I think him suing trump fits in perfectly with how Trump feels these laws should work.

Of course I have no doubt Trump will suddenly be against such things since he is the target this time not the "injured party" this time.
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- Anonymous Coward, 20 Oct 2016 @ 7:39am
  
  Re:
  I agree, I hope that Kittos finds the energy to sue the fuck outta Trump.
  
  While I will be laughing my ass off in the faces of all the Hillary and Never Trumpers if he is elected, I do not like the clown either. But I think I might hate those guys more for their hypocritical positions.
  
  But either way, Trump should be hit with every ounce of bullshit he foists or threatens to foist upon others.
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Anonymous Coward, 20 Oct 2016 @ 7:18am

Abolish copyright.
Period.
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- Anonymous Coward, 20 Oct 2016 @ 7:42am
  
  Re: Abolish copyright.
  I would not agree with abolishing it, just a serious overhaul like cutting it back to 10 years after Market release.
  
  If you can't recoup your losses or effort in 10 years then your IP might not be all its cracked up to be!
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  - DannyB (profile), 20 Oct 2016 @ 10:33am
    
    Re: Re: Abolish copyright.
    The world has changed.
    
    Five years.
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  - Anonymous Coward, 20 Oct 2016 @ 2:19pm
    
    Re: Re: Abolish copyright.
    Kind of like slavery didn't need to be abolished, it just needed to be "overhauled". But some people just couldn't see that and we wound up with a whole civil war over it.
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Anonymous Coward, 20 Oct 2016 @ 7:49am

Making lawsuits go away. Isn't that what the Trump Foundation is for?
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- DannyB (profile), 20 Oct 2016 @ 10:34am
  
  Re:
  The Trump Foundation is for paying off the settlement once you can actually get the other party to agree to settle.
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Wyrm (profile), 20 Oct 2016 @ 9:35am

I'm not sure about UK, but several countries in Europe have a "moral right" component to their "author's rights" that allow them to forbid a use that they disagree with on moral grounds.

This is not too be used for licensing, which is a separate right, but this case would be a perfect textbook example of this right.

So maybe, just maybe, this guy has misconception about his rights in US courts.
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Uriel-238 (profile), 20 Oct 2016 @ 10:32am

It's still the wrong bowl of skittles.
Using John Oliver's numbers, out of all the Syrian refugees we've already accepted in the last fourteen years, only three have been arrested on terrorism-related charges (without actually committing any acts of terror), so we can say they were skittles that were rejected for maybe being poisonous.

Those three were found in a bowl of skittles 784,000 strong, so a bowl of 500 liters of Skittles, weighing 3.13 metric tons.
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TMC, 20 Oct 2016 @ 11:44am

I think you're overstating the viability of fair use. Seems like automatic copyright is a nullity if you can just find someplace where the owner is giving it away for free.

Be a lot easier to root for this guy if he hadn't said he was going to abuse copyright law to get this done.
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Rubber Baby Buggy Bumpers, 20 Oct 2016 @ 1:24pm

Let me get this straight. If my adult child who doesn't live at home posts a possibly infringing image to their personal twitter I can get sued for copyright infringement. Great.
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Wendy Cockcroft (profile), 21 Oct 2016 @ 5:44am

http://iprabuse.blogspot.co.uk
We've been told at work on our official copyright policy that copyright is an intellectual property right designed to allow the author/creator of a work to control its use.

No doubt this unfortunate fellow has been told the same thing. If his lawyers are feeding him the same line, no wonder he believes it. Everybody else (who doesn't follow IPR news) does. Whatever certainly does.
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- Wendy Cockcroft (profile), 21 Oct 2016 @ 5:46am
  
  Blame IPR maximalist pressure groups
  The maximalist pressure groups pushing for more control and longer terms have a lot to answer for, as Mr. Kittos is about to find out. Expensively.
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