Skittles Photographer Actually Sues Trump Campaign Over Infringement

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

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.

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

Photographer Successfully DMCAs Trump Jr.'s Skittles Image

from the copyright-and-politics dept

So, just last week, we wrote about how David Kittos, a refugee from Cyprus now living in the UK, had taken the photograph of a bowl of Skittles that Donald Trump Jr. had used in a tweet about banning refugees. Kittos said he was thinking about taking legal action, but said he wasn't sure he had the patience for it. But, of course, thanks to US copyright law, if you want something to disappear, you don't have to go through a whole litigation process, you can just use the DMCA. And that's exactly what David Kittos did (first noticed by The Washington Post, which may have a paywall).

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== Description of original work: Photography of a bowl of Skittles from my flickr library which was copied WITHOUT my permssion

== Links to original work: https://www.flickr.com/photos/david_kittos/[REDACTED]/

---

== Reported Tweet URL: https://twitter.com/DonaldJTrumpJr/status/[REDACTED][REDACTED]

== Description of infringement: The image of a bowl of skittles is mine and has always been set as "ALL RIGHTS RESERVED" in my flickr library It was copied and is being used WITHOUT my permission. I have never been contacted by Donald Trump Jr or any representative about the image, before of after it was used in the Tweet.

-------

And it worked: Now, of course, there's a question of whether or not Trump Jr. will file a counternotice, and then if Kittos would actually follow through with a lawsuit. I'm guessing neither will happen, but who really knows? There's a possible, but not really that strong, argument that Trump Jr.'s usage was fair use. And it does seem like Kittos' takedown is much more about his objection to the speech, rather than the possible infringement -- and, once again, that suggests it's another example of using copyright to censor speech someone doesn't like. As I made clear, I think the Skittles analogy is incredibly stupid (and racist), but that doesn't mean I'm comfortable with using copyright to silence it.

Filed Under: censorship, copyright, david kittos, dmca, donald trump jr., fair use, skittles, takedwon
Companies: twitter

Former Refugee Who Took Skittles Photograph Donald Trump Jr. Used In A Stupid Meme Threatens Copyright Lawsuit

from the 2016-is-quite-a-year dept

As you may have heard, earlier this week, Donald Trump Jr. tweeted out a ridiculous image comparing Syrian refugess to poisoned Skittles. No, really. FWIW, this is an old and a dumb and meaningless meme. It's not always Skittles, though. Last year failed Presidential contender Mike Huckabee used the same concept, but with Peanuts -- and John Oliver mocked him for it, noting that "peanuts themselves have killed far more people than terrorist refugees." Another version involved M&Ms, and it was used by a variety of groups -- including a feminist "Yes All Women" campaign. Some are arguing that the switch from M&Ms to Skittles is even more racist, because it's based on the fact that when Trayvon Martin was shot dead by George Zimmerman, Martin had a pack of Skittles in his pocket. And, of course, the Intercept argues that this meme goes all the way back to a top Nazi propagandist making sure that the meme is sufficiently Godwined.

But... of course, most of that has little to do with what we normally cover around these parts. But what we do often cover is copyright related issues -- so it's interesting to find out that the image used in that Skittles graphic that Trump Jr. posted was copied from Flickr, where it pretty clearly has an "all rights reserved" copyright notice on it. Oh, and the guy who took the photo, David Kittos, happens to be a former refugee himself, who is not at all pleased that his image is being used in this manner.

"This was not done with my permission, I don't support his politics and I would never take his money to use it," Mr Kittos told the BBC.

"In 1974, when I was six-years old, I was a refugee from the Turkish occupation of Cyprus so I would never approve the use of this image against refugees."

So, yeah. But what can he do? Well, apparently he's considering taking legal action, though he (rightly) notes that that may be a hassle:

"I would like the Trump campaign to delete the image, but they are probably not interested in what I have to say," he said.

"I was thinking about getting lawyers involved but I don't know if I have the patience.

"This isn't about the money for me. They could have just bought a cheap image from a micro stock library. This is pure greed from them. I don't think they care about my feelings. They should not be stealing an image full stop."

While I might disagree on the use of the term "stealing an image" there, it certainly could create an interesting copyright legal battle -- raising serious questions about fair use in political discussions. Thankfully, though, it seems unlikely that any lawsuit will actually happen. Instead, we can just sit back and think about the number of meetings and conversations that must have happened before Mars Inc., makers of Skittles, decided to put out this statement:

Skittles are candy; refugees are people. It's an inappropriate analogy.

Indeed. But is it copyright infringement...?

Filed Under: copyright, david kittos, donald trump jr., memes, refugees, skittles