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

from the not-how-it-works dept

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.

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