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Skittles Photographer Actually Sues Trump Campaign Over Infringement

Maybe this will convince Trump that Fair Use is a good thing?

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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:

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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.

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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.

Skittles Photographer Actually Sues Trump Campaign Over Infringement

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