Donald Trump Jr., who has been on the campaign trail in support of his father, has received backlash over a statement he made about the Syrian refugee crisis. In his statement, he compared a bag of Skittles to the Syrian refugees who are desperately trying to flee their war-torn country. This has caused uproar among many and now Trump is being forced to take down the Skittles photo that he used in making his remark. The owner of the photo wants to have no part in this. Legally speaking, as the copyright holder of the photo, he can force Trump to take down the photo without a moment’s notice. However, there are other factors that need to be considered in determining if Trump can make use of the work without permission.
Under Copyright law, the photographer or whomever the photo was commissioned for is the rightful owner of the photo. Here, Trump Jr. has made use of a photo without permission from the copyright holder. The copyright holder can seek a mandatory injunction forcing Trump to take down the photo. Moreover, they can seek damages for copyright infringement. The only way Trump Jr. can maintain the photo is under the fair use doctrine. Whenever a copyrighted work is used for any purpose without the owner’s permission, there are grounds for infringement.
Fair use is a defense to infringement in certain situations. For example, Trump Jr. can claim that the photo was being used as a political message and was for a public purpose. Although fair use does not have clear boundaries as to when the defense will be triggered, if the use is used for a non-commercial, educational, or scholarly purpose, then there is a great likelihood of coming out on top.
Although his analogy is borderline absurd, it is intending to send the message that we should be more wary of allowing in more refugees. Once again, the content of the message should be looked at in determining if there is some educational or non-commercial purpose to it. Here, a claim can be made for this, yet the absurdity of it might dampen Trump’s case. Politicians have been using copyrighted material in promoting their agenda for some time now. This is not the first time in this particular campaign either. Trump has sampled music from different artists without permission. Sometimes, compulsory licenses will allow politicians to get away with this. With this particular photo, this will not work and unless fair use can be raised, then Trump Jr. will have to take down the photo.
One of the reasons why the photographer wants to prevent use of the photo is in accordance with a concept known as moral rights. Moral rights, although not widely considered in the U.S. Copyright system, gives the right of integrity to someone’s work. Right of integrity protects the ‘dignity’ of the work. Here, Trump Jr. is sending a message that is both controversial and inflammatory which could leave a blemish on the photo itself. The photo might come to be associated with the outrageous comment that Trump is making and the copyright holder does not want this. Hence, this is the justification for taking down the photo.
Authored by Sam Behbehani, LegalMatch Legal Writer