Category: Law & Policy

Fair Use and Politics: Trump Denied Dismissal in Suit with Eddy Grant

This week, the SDNY denied the motion to dismiss requested by Donald J. Trump et al in the copyright suit filed by singer/songwriter Eddy Grant. The complaint stems from the unlicensed use of Grant’s song “Electric Avenue” which was synched with an animated, political video satirizing then candidate Joe Biden in 2020. The video was distributed via social media, including on Trump’s own Twitter account on August 12th. The defendants based their petition for dismissal on the grounds that use of the song was a fair use.

It is difficult in general to win a dismissal of a copyright claim based on a fair use defense. But that procedural standard notwithstanding, the fair use argument presented in this case is well-trod territory and, therefore, short work for a court in the Second Circuit, which is replete with copyright precedent. Specifically, Trump et al employed a familiar tactic by arguing a too-broad interpretation of what it means to “use a work for a different purpose” than its original purpose at creation. This argument is made under the first prong of the fair use test, which considers the purpose of the use, including whether the use is transformative. Here, the SDNY was clear:

While it is true that the animation is partisan political commentary and the song apparently is not, the inquiry does not focus exclusively on the character of the animation; rather, it focuses on the character of the animation’s use of Grant’s song. As the Second Circuit Court of Appeals recently stated: ‘where a secondary work does not obviously comment on or relate back to the original or use the original for a purpose other than that for which it was created, the bare assertion of a ‘higher or different artistic use’ is insufficient to render a work transformative.’

So, as I say, the court is not breaking any new ground in finding that the fair use test would most likely favor Grant in this case and that it must, therefore, deny the motion to dismiss. If this litigation proceeds, I believe Trump et al will continue to find that there is no precedent on which its fair use defense can survive; and considering the much darker legal clouds gathering around Trump’s world, I would not be surprised if this little civil dispute with one musician is settled in the coming weeks or months.

Is Political Speech a Little Different?

What can be tricky for many observers with this kind of case—and the court here alludes to the matter—is that political satire is a “rich part of our First Amendment tradition.’” The the anti-Biden video was satirical in general and produced by a third party, albeit as an endorsement of Trump for President. But the reason the transformative test fails is that no comment upon “Electric Avenue” itself is present in the use. The fact that the overall message of a work may be satirical does not favor a fair use any more than if the overall message is deadly serious. The essential ingredient that must exist under prong one of the fair use test is some comment upon the work being used without license. But what if a political video is satirical overall and achieves parody of a work being used?

In fact, this is close to what occurred in Henley v. DeVore in which Don Henley’s songs were used for political purposes, and about which the court in Grant writes, “In Henley, the defendants changed some of the lyrics to the copyrighted songs and even provided their own vocals. And because the defendants there used the songs as vehicles for their political messaging, in one instance to poke fun at Henley himself for his political affiliations, the court found that the secondary works were satire and parody, respectively.”

The Grant court notes that the fair use test still failed due to the amount of Henley’s work used for the purpose, but I underline the example to make the point that a political advertisement could conceivably be parody of a work and a satire at the same time and, therefore, be held a fair use of a protected work at issue. But might this raise an acute tension with the First Amendment?

It is considered self-evident that political speech is a paradigmatic subject of the speech right, but if this is so, then compelled political speech is a paradigmatic infringement of the speech right. Thus, when a copyrighted work is used without license in a political message, the use has greater potential to result in an especially egregious form of compelled speech. This principle is exacerbated in the current climate, where political divisions are sharp and hostile, but also in the digital landscape, where the distinction between the political satirist and the political operative is almost invisible.

Any smartass with a smartphone can, and does, make potentially very persuasive political commentary and distribute same via social media. And, of course, the low-cost tools of production and distribution are available to the many PACs and other third parties who are not in the satire business like South Park or The Daily Show, but are instead in the professional campaign business. Meanwhile, as viewers, we do not pay much attention to the sources of all the memes and videos that shape or reinforce our views and opinions—even where that information is available at all.

In principle, a court looking at a satirical video, whether it is produced by a PAC or SNL, should consider fair use in the same manner. As the court in Grant notes, “…denying the defendants’ fair use defense in this case—especially at this early stage in the litigation—will not chill legitimate political satire. Creators of satirical videos like the one at issue here must simply conform any use of copyrighted music with copyright law….” On the one hand, it is sensible that a court view the Biden satire video as it would any other “legitimate political satire” with regard to the fair use analysis; but on the other hand, it strikes me that if the creator of a political satire is a political operative with a clear political purpose (e.g. to win an election or advance a specific policy), that the speech rights of the copyright owner should perhaps weigh more heavily against a finding of fair use than might be considered in a use that does not have such a clear political purpose.

While it is true that the unlicensed use of a work to promote a brand or a message may feel to the copyright owner like a form of compelled speech (and may even violate his right of publicity), these private sector infringements lack the state action  necessary to implicate the First Amendment. And even though a work of political satire may be produced by a party like a PAC, which is in the private sector, when the satire’s purpose is arguably an extension of a political campaign—especially of an incumbent office-holder—the copyright owner may justifiably feel a more acute form of compelled speech than with a typical commercial infringement.

Specifically, when a sitting President uses his social platform to distribute a video endorsing his reelection, and the video is enhanced by an unlicensed copyrighted work, the compelled contribution by the rightsholder to that message may consider the experience awfully close to a constitutional, as well as a personal, violation of his speech rights. This may be true even with an incumbent who is more disciplined than Donald Trump when it comes to the distinctions between the office and the individual. The fact that this form of compelled speech will generally skirt a constitutional violation is a technicality mired in the tangles of campaign finance rules and the role of PACs, but the bottom line for the copyright owner is likely something like this: “The sitting President just used my voice to support his reelection, and I don’t support him.” But should that violation be allowed, if the use also succeeds in commenting upon the work at issue within the same political message? Perhaps, but alas …

Sadly, we no longer live in a world in which political theater plays a fractional role within a broader competition of ideas. Instead, our political process is too often nothing more than theater. No politician in modern history both exploited and exemplified this circus atmosphere more than Donald Trump, and no platform has ever amplified the cacophony like social media. It is simply too easy today to cobble together pictures and sounds into political performances that go viral; and at the very least, the authors of the works being used should be accorded the right to allow or disallow the exploitation of their creative expressions for those purposes.

The underlying principles of the fair use exception in copyright law are high-minded in theory. The exception supports the speech right—especially the right to comment upon protected works—and this, in turn, animates the foundation of copyright to promote more expression. But when considering fair use in regard to using unlicensed works for political speech, perhaps the identity of the user and the precise nature of his political intent should be considered under factor one—the purpose of the use—in deference to the copyright owner’s speech rights.

Photo source by: melis82

The Server Rule Has to Go

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On September 17, a California District Court dismissed the complaint in Hunley et al v. Instagram, in which the plaintiff class accused the Facebook-owned social platform of “encouraging, inducing, and facilitating third parties to commit widespread copyright infringement” by means of the company’s promotion of its embedding tools. Through Instagram’s marketing the ability for third parties to display images by means of embedding (copying code that points to the image file on Instagram’s servers), Photographer Alexis Hunley et al argue that the platform induces other parties to infringe photographic and other works.

But in order to proceed with an allegation of secondary liability against Instagram, those third party users must be considered alleged direct infringers by the court; and according to Ninth Circuit precedent, parties who cause the display of works by means of embedding (aka “in-line linking”) do not infringe the display right (§106(5)) of the author.

The precedent, written in the case Perfect 10 v. Amazon (2007), is known as the “server rule” because it holds that if a person causes the display of a work by pointing to a location on a server he does not control (i.e. where he has not stored the copy of the work), then §106(5) is not implicated. In a few recent cases, courts in the Second Circuit have held the opposite view, finding, quite reasonably, that when a party causes a work to be displayed by any means, then the work has been, well, displayed. (See discussion in posts here and here.)

So, in Hunley, there was little doubt the district court would be bound by the controlling precedent, but if and when this circuit split is ever resolved, it is the Second Circuit’s reading of the law that common sense must favor. In fact, if the server rule question is ever presented to the Supreme Court, the district court’s five-page opinion in Hunley emphasizes the error in Perfect 10 when it describes that decision as having been based on the “plain language of the statute.” No, I don’t think it was.

Perfect 10 may be a plausible reading of the statute, but it is neither a plain reading nor a particularly sensible or fair one. §106(5) of the Copyright Act protects the author’s exclusive right to “display the copyrighted work publicly,” and any party who displays a work without license (exceptions notwithstanding) is an infringer. The plain-text definition of “display” in §101of the law is “to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process …” [emphasis added]. And just to cover all bases, “copies” are defined thus:

“Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

Nowhere in these statutory definitions—read independently or interdependently—does the text indicate that while using a “device or process” to cause a public display, the user of a work will only implicate the author’s exclusive right if he displays the copy which he caused to be made of the work. Reading the text as the Ninth Circuit does is a strained and creative interpretation, not a strict one. In fact, as Professors Jane Ginsburg and Luke Budiarjo argued in a 2019 paper, the server rule has been “converting the display right into an atrophied appendage of the reproduction right.”

If we were to apply the server test in any context other than the internet, it would not survive as a defense in court—not even in the Ninth Circuit. In 2007, perhaps the court in Perfect 10 was distracted by the technology and failed to recognize that “finding” a work online and making unlicensed use of it online is not legally distinguishable from doing the same thing in physical space. It should not matter that “in-line linking” happened to accomplish the purpose of display by technologically novel means. And while it is often true that statutory language can be out of step with a new paradigm, that does not seem to be the issue here.

If Perfect 10 were a textually defensible reading of the statute, then the server rule’s abuse on the display right and common sense would be a forgivable legal loophole in need of repair. Instead, it is simply bad law and should be overruled, either by the Ninth Circuit Court of Appeals itself, or by the Supreme Court, if and when that opportunity is ever presented.

Photo: by: AndreyPopov

Fifth Circuit Delivers Maddening Opinions in Bynum Copyright Suit

In the continuing saga of state actors getting away with copyright infringement, let’s look at the story of author/publisher Michael Bynum and his book about the legendary “12th Man” of the Texas A&M University (TAMU) football team. The tale, which has been passed down through generations of Aggies and other football fans, describes the “Dixie Classic” of 1922, when the Texas A&M team sustained so many injuries that it faced a potential forfeit for lack of players. The Aggie coach called upon a sophomore basketball player named E. King Gill, who was watching in the stands, and asked him to suit up and be ready to sub in if needed. Gill did as the coach requested, and although he was never sent onto the field, his willingness to stand at the ready has fed Aggie lore, and Texas A&M marketing, for the past century.

Bynum, who has been a sports historian for 44 years, formed a collaborative relationship with the Texas A&M Athletic Department while working on the story, which he described in an email to me as “the first and only serious effort to tell the full story of E. King Gill.” In 2010, while seeking photographs for the project, Bynum sent a PDF “draft in progress” of his manuscript to TAMU’s Associate Director of Media Relations, Brad Marquardt. The PDF included a notice of copyright and a first chapter, created as a work made for hire (WMFH) by a writer named Whit Canning, whom Bynum had paid to write a short bio about Gill. Then in 2014, in connection with a fundraising campaign, Marquardt not only directed his secretary to retype the Gill Biography and omit the copyright information, but also to edit the byline in order to make it appear as though TAMU, rather than Bynum, had contracted Canning to write that material.

Bynum’s work was then published and distributed by Marquardt and others in the Athletic Department, both physically and online. “At this point the 12th Man Book has not been published because Texas A&M University gave it away to more than 350,000 readers in 2014. The guts of this story has already been read by the key people who would have wanted to buy it (and read it properly),” Bynum says.

So, let’s jump to 2017, when Bynum and his publishing company Canada Hockey, LLC (D/B/A Epic Sports) filed suit against the TAMU Athletic Department, the TAMU 12th Man Foundation, and employees of the Athletic Department, including Brad Marquardt. The allegations included direct copyright infringement, contributory and vicarious infringement, violation of DMCA §1202 for removal of copyright information, and violation of the Takings Clauses of both the Texas State and U.S. Constitutions.

Concurrent Takings Opinions Mired in Theory About the Nature of Copyright

Readers know by now that states and state actors are immunized by the Eleventh Amendment from federal suit and that, in Allen v. Cooper (2020), the U.S. Supreme Court affirmed that Congress lacked the authority to abrogate state immunity when it passed the Copyright Remedy Clarification Act (CRCA) of 1990. Thus, Bynum presently runs into the same wall as any other rightsholder when a state entity like a university commits infringement in violation of the federal statute. Proponents of sovereign immunity argue that denying a copyright owner the ability to bring federal infringement actions against states is not unconstitutional because “alternative” remedies are available, most notably takings claims. But, it is in the Fifth Circuit’s consideration of the takings claims where the court’s pair of recent opinions, both delivered on September 8 (here and here), is infuriating in several ways.

For context, a plaintiff may override sovereign immunity and sue a state or state actor in federal court, if he can demonstrate a constitutional violation and show that there is no remedy available in state court—which together would rise to a violation of due process. Thus, we see copyright holders, who are presently barred from pursuing statutory claims under the Copyright Act, allege that state infringements violate the Fifth Amendment’s prohibition against taking private property for public use without due process.

But in Bynum’s case, particularly because the Texas Constitution’s Takings Clause is more expansive than the Fifth Amendment, the Fifth Circuit opined that Bynum has a path to a remedy in state court and, therefore, TAMU’s immunity from litigation in federal court is not abrogated. This comes on the heels of photographer Jim Olive failing to plea a takings claim under that same clause, as discussed in this post. (Head spinning yet? Hold my beer.)

No person’s property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made. – Takings Clause, Texas State Constitution –

In finding a path to state remedy for Bynum, the court refers to Olive, in which the Texas Supreme Court held that “copyrights are not property” subject to a per se takings claim. But the Fifth Circuit then avers that these plaintiffs could pierce the immunity bubble if, for instance, they were to argue the “damaged” or “applied” prongs of the Texas Takings Clause under the doctrine of a “regulatory taking.” What’s that? (Drink my beer and open another.)

A regulatory taking in a copyright context would theoretically apply where the plaintiff can show, through a multi-factor test, that the value of his property is either “damaged or destroyed” as a result of a state regulation. Not only is this highly speculative—especially after the highest court in the state has already said that copyrights are not property—but what, you might ask, would be the “regulation” in this case? Allegedly, it would be Texas’s own sovereign immunity doctrine in its state constitution. So, is it really plausible that a plaintiff can pursue a regulatory takings claim under any of the prongs of the Texas clause? And, of course, this supposed remedy would vary from state to state. (Skip the beer, open the bourbon).

But the appeals court did not end its analysis by pointing to a door Bynum cannot realistically walk through. Instead, it further observed that, “the Supreme Court has not ruled whether copyrights are property subject to a takings claim, but this is not a subject of first impression here.” What the Fifth Circuit is referring to is Porter v. United States, a 1973 case involving the widow of Lee Harvey Oswald and Oswald’s unpublished writings, in which the court held that “infringement of copyright, whether common law, or statutory, constitutes a tort.” [Citations omitted]. And, at the same time, the opinion in Bynum also mentions that nothing in Texas tort law provides a path to remedy. (Take a shot.)

So to recap, the Fifth Circuit told Mike Bynum that he is barred from a claim in federal court, in part because there is a state remedy available under Texas’s Takings Clause, but only under the doctrine of a “regulatory taking,” which is uncertain at best,[1] and then the court also affirms its jurisdictional position that copyrights are not property subject to a takings claim. Meanwhile, several court opinions since 1973, including SCOTUS in Allen, unequivocally describe copyrights as a form of property.

What is Copyright Anyway?

Now, for the bonus round, raise a glass, and let us consider the same court’s opinion regarding the qualified immunity of Mr. Marquardt pursuant to Bynum’s claim against him. Akin to state sovereign immunity, qualified immunity extends to government officials themselves, and in considering whether Marquardt retains his immunity in this case, the court recites the standard as follows:  “To establish that qualified immunity does not apply, the plaintiff must prove that the state actor (1) violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.”

The court here dismissed Marquardt’s plea for immunity, primarily on procedural and jurisdictional grounds, but I want to call reader’s attention to the use of the word right in both conditional clauses cited by the court. Because the statutory right which Marquardt allegedly violated (and had every reason to know he was violating) was Mr. Bynum’s right to exploit his copyrights.

So, are copyrights property subject to a takings claim? They should be held as such because a) this appears to be only potential remedy to state infringements at present (see Rick Allen v. North Carolina); and b) because copyrights share relevant qualities with other forms of property that can be transferred, protected, or effectively stolen from individuals. But …

Copyright law fundamentally protects an individual’s right to exploit a particular form of property (intangible property) in specific and limited ways. Thus, copyright is a little bit like any other civil right insofar as a court may apply very similar analysis as it would to find that a government official violated a speech or religious right of an individual and is, therefore, not immune from litigation. And, as discussed in my last post, state copyright infringement may also result in compelled speech.

So, it is little wonder the courts are in semantic knots over these matters. It is not uncommon in jurisprudence that copyrights are alternately described as property-like or rights-like in briefs and opinions, but when considering remedies for infringement under the federal statute, that dual identity does not tend to result in dismissal. It is only because SCOTUS held in the 1990s that state infringement claims lead to constitutional collisions that copyright owners today seek a workaround through takings claims, and the courts find themselves delving into the metaphysics of copyright to ask how property-like it is. But how could it be otherwise when considering a remedy most often applied to the taking of real estate for public use?

People of good intent may debate ad infinitum as to whether copyright is more akin to a civil right or more akin to personal property. But for the purposes of due process with regard to state infringements, assuming a claim like Bynum’s winds up at the Supreme Court, that Court should affirm that copyrights are property and that state infringements can be remedied by proving a taking has occurred. It may seem a bit like asking a basketball player to suit up for a football game, but creators deserve a solution when state actors deprive them of the fruits of their labor.

[1] Note that the Copyright Office report on state sovereign immunity also commented that takings claims and other alternatives are untested, and likely inadequate, remedies.