(Photo by Mark Wilson/Getty Images)
Who would have thought that with the nation slowly rising out of (hopefully) the worst of the COVID-19 pandemic, we would become embroiled in civil unrest resulting from the horrific mistreatment and death of George Floyd at the hands of now-former police officers of the Minneapolis Police Department. Like most Americans with a conscience, I remain stunned and horrified by it. As it is an election year, it is no surprise that President Donald Trump and Joe Biden have both weighed in on the matter. What is interesting, however, is that Trump’s campaign created a 4-minute video tribute to George Floyd that was posted on social media yet unceremoniously removed soon thereafter on Twitter and Facebook’s Instagram ostensibly on copyright infringement grounds. Oddly, it’s not just the reasons for the takedowns but the assumptions underlying the content that are worth closer examination, whether or not politics has anything to do with it.
Given that the recent tragedy and aftermath seem the impetus for the video, some of the published facts would be helpful. On May 25, 2020, George Floyd (a 46-year-old black man) died in Minneapolis, Minnesota, after Derek Chauvin, a white police officer, basically knelt on Floyd’s neck for over eight minutes while Floyd was handcuffed and lying face down on the street. Despite Floyd’s pleas that he couldn’t breathe, the surrounding police officers did nothing to intervene. Heartbreaking. This event has stirred-up protests throughout the nation, as well as serious unrest and looting in some metropolitan areas. In the wake of this tumult, Trump’s presidential campaign put together a video intended to be a tribute to Floyd to unite Americans. Instead, the takedown by Twitter and Instagram has caused even more controversy.
The video (which, interestingly, remains available on YouTube), depicts a montage of no less than 141 videos and still photographs (yes, I counted), with Trump addressing the tragedy, sympathizing with the peaceful protesters, and condemning “rioters, looters, and anarchists” for dishonoring the memory of Floyd. It ends with the word “Unite.” Regardless of your political persuasion, it is hard to argue that the video is not a powerful one. That said, Twitter quickly removed the video from its platform, claiming it was doing so consistent with its terms of service due to “a DMCA complaint from copyright holder.” Apparently, Facebook made the same assertion for the Instagram takedown. Oddly, YouTube did NOT remove the video from its platform, despite having also received a DMCA takedown notice. Interesting, indeed.
Whether or not you agree with Twitter and Facebook (or YouTube for that matter), the fact remains that the takedowns further enraged the Trump campaign and place additional scrutiny on social media, the DMCA, and immunity under Section 230 of the Communications Decency Act (CDA). Given the recent executive order signed by Trump directing federal agencies to alter their interpretation of the liability protections afforded internet service providers under Section 230, these takedowns are further fanning the flames of the debate.
I have written previously about how political campaigns should avoid certain assumptions regarding the use of copyrighted music. The following are a few considerations that bear consideration by political campaigns when compiling other audiovisual content for political ads and other campaign videos:
Never Assume That The Intended Use Qualifies As Fair Use. Except for those areas expressly identified as non-infringing uses under Section 107 of the Copyright Act, any determination of “fair use” of a copyrighted work requires weighing factors that includes the following four factors:
1. “the purpose and character of the use” (e.g., commercial use or nonprofit educational purpose);
2. “the nature of the copyrighted work”;
3. “the amount and substantiality of the portion used in relation to the copyrighted work as a whole”; and
4. “the effect of the use upon the potential market for or value of the copyrighted work.”
No matter how appealing, assuming that the use of another’s artwork or video in a political ad or campaign video qualifies as “fair use” of the work is ill-advised. Such “political fair use” is by no means consistently handled by the courts, so there is little guidance that a court would weigh the factors in a campaign’s favor. Without question, care should be taken when considering “fair use” in this context.
Never Presume Consistent Application Of Social Media Terms For Political Content. If it seems that I frustrated by how social media platforms handle these requests, I am. From what I can gather, the same DMCA notice was sent to Twitter, Facebook (Instagram), and YouTube, yet only Twitter and Instagram complied. YouTube did not find the “protected material” in the video on its site, however, so the video remains posted on their platform (for now). As a private practitioner, it is difficult to advise clients on DMCA takedowns when there is little consistency not only between platforms, but within the platforms themselves (let alone for political content in this day and age). Always be aware of the IP infringement policies of the platform at issue, and then research how they have handled such claims as best you can — it will provide needed perspective.
Never, Ever, Assume The Copyright Holder Agrees With You. No matter how ostensibly unifying the message, political campaigns foment strong opinions. There is never a guarantee that the copyright holder will agree with the message, no matter how benign the campaign may think it to be. This goes beyond the DMCA takedown — copyright holders with large social media followings can wreak havoc on a campaign by unleashing followers. Although Trump seems to relish fighting back against such trolling, not every campaign is anchored by such a personality running for office, so politicians beware.
What cannot be ignored here, however, is that the rights of copyright holders and websites should always remain balanced against public policy considerations underlying the use. From my perspective, the DMCA does not account for such balance — it is a procedural mechanism for notice to the social media platform (or website operator) and a potential counternotice by the poster of the content to defeat the takedown. For example, the 141 videos and still photographs show protests, rioting, street art depicting George Floyd, as well as police offers embracing protesters (to name a few), all stitched together consistent with the narration provided by Trump — there is no information as to which element of the video triggered the DMCA notice, but it seems to be just one of the videos or photos. Any DMCA takedown premised upon a single video or photograph appears harsh, and obtaining consent from all of the copyright holders before posting is simply not feasible for this type of work. Whether or not you agree with the takedowns, I think the debate about the DMCA (recently the subject of Senate hearings) as well as Section 230 of the CDA (misconceptions of which I wrote about last week) has been a long time coming. So political campaigns should take heed — the protests involving the Floyd tragedy are ongoing, but the protests over copyright, the DMCA, and Section 230 have just begun.
Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.