Copyright Misappropriation and Impeachment: A Recipe for Twitter Gold

Nia Joyner

            If you needed any more proof that we are living in the Twilight Zone, try this on for size: Nickelback, the Canadian rock band, has entered the mainstream Trump Impeachment debate against President Donald Trump. In case you have missed it, under the leadership of Speaker Nancy Pelosi, the House of Representatives has entered an official impeachment inquiry to investigate a possible bribe in which the executive branch unfreezes military funding for the Ukraine in exchange for a corruption investigation into Joe Biden and his son, Hunter. The Trump Administration alleges that Hunter Biden engaged in potentially illegal behavior by accepting a paid position on the board of a Ukrainian energy company while his father was the sitting Vice President in the Obama Administration. On a call with President Trump, the newly elected Ukrainian President expressed his to acquire by additional American-made military grade weaponry. President Trump replied, “I would like you to do us a favor though”, and proceeded to suggest that Vice President Biden had a Ukrainian prosecutor fired for beginning an investigation into his son’s company. This claim is unsubstantiated. In fact, evidence suggests that the prosecutor was never looking into the company and that Biden, along with a group of international allies, actually pushed the prosecutor out for his own ethical shortcomings. A person in the White House privy to this conversation told a whistleblower who made a report to the Intelligence Community Inspector General, as is the correct protocol. The White House assured the public that there was no pressure to investigate the Bidens and no quid pro quo. In the hopes to exonerate President Trump and calm the press, the White House released a summary of the call as memorialized by the recollections and notes of National Security Council policy staff who listened to the call. It did not exonerate the President or calm the press by any means. After realizing that the record did not put his matter to bed, White House messaging pivoted. They now argue that the Take Care clause of the US Constitution requiring that the President take care that US law be faithfully executed also requires President Trump to ensure that Ukrainian corruption laws are also followed.

            So where does Nickelback and Copyright Law come in, you ask? President Trump has engaged in several social media campaigns to mount his defense. One of them employs Nickelback’s 2005 hit “Photograph”. In the original music video, frontman Chad Kroeger holds a framed photograph of himself and his music producer as the song plays in the background. In the version of the video tweeted by President Trump, Kroeger holds a photograph of Joe Biden, Hunter Biden, and a man labeled “Ukrainian gas exec”. This tweet caused a bit of a social media frenzy in part because of the fact that Nickelback is the butt of a lot of jokes in the music industry and in part because of genuine disbelief that the sitting President of the United States non-ironically used such a band to defend himself against a popular impeachment investigation.

        The internet really exploded, though, when the video was removed and replaced with a notice that reads, “This media has been disabled in response to a report by the copyright owner.'' President Trump’s tweet seems to clearly meet the two elements of copyright infringement, copying and misappropriation. Though Twitter’s copyright policy may not carry the same force as traditional copyright law, it likely performed some form of analysis on these elements in deciding to remove the video from its platform. The case that President Trump engaged in the copying necessary to meet the first element makes itself. He, or someone on his staff, digitally altered Nickelback’s music video. The audiovisual content was taken without prior consent, so which is direct evidence of copying. There also seems to be a clear case of misappropriation, meeting the second element. There is a striking similarity between the two video expressions against the interests of the copyright holder, making the copying actionable.  It also likely fails a fair use analysis, as it is not a parody of the original content. It is not a teaching tool in an educational setting, does not advance research or scholarship, does not qualify as news reporting, is not transformative, and is not for personal use. The removal deviates pretty drastically from Twitter’s other responses to Trump’s social media behavior. There have been countless calls for Twitter to suspend President Trump’s account for violating Twitter’s terms of service by posting hate speech. Those calls have one unanswered. This speaks to the power that copyright law has over the internet, tech companies, and society as a whole. This story also suggests that, particularly in the age of social media and mass digitization, intellectual property belongs in every avenue of discourse.