California Intellectual Property Blog


Donald Trump, Wedding Crasher, Becomes Copyright Infringement Case

Orange County – A photograph taken of Donald Trump at a wedding in Bedminster, New Jersey on June 11, 2017 went viral. The photograph documented the President crashing a wedding at one of his resorts and has become the source of contention for some of the guests of the wedding.

Jonathan Otto, the vice president of Deustche Bank, was a guest at the wedding and took the photo of President Trump on his iPhone. Another guest at the wedding, Sean Burke, received the photo from Otto, which he shared with other attendees. The photo eventually made its way to Instagram, where the media first discovered it. Thereafter the photo was showcased on CNN, TMZ, The Washington Post and the Daily Mail. A text from Otto to Burke followed these events that read, “Hey, TMZ & others are using my photo above without credit/compensation. You send to anyone? I want my cut.”

Otto proceeded to file a lawsuit for copyright infringement. Esquire magazine, which used the photo in an article titled, “President Trump is the Ultimate Wedding Crasher,” was recently held liable in court for copyright infringement. Hearst Communications, the parent company to Esquire, argued that the photo being used for the news was fair use.

Gregory Woods, the U.S. District Court Judge, disagreed. Judge woods made a statement that said the misuse of the copyrighted photo with a news article without adding in new meaning to the work was not fair use regardless of whether the photo was created for personal or commercial use. Woods also declared that it would not be ethical to allow media to steal personal images posted on social media and benefit from their use. If media companies were to publish content from personal sources, it would diminish the incentive for commercial photographers to generate content to illustrate articles. Judge Woods also posed the question, “why pay to create or license photographs if all personal images posted on social media are free grist for use by media companies, as Hearst argues here?” In the end, the judge determined that “Otto’s status as an amateur photographer with an iPhone does not limit his right to engage in sales of his work.”

It is true that there are instances where a photographer has no interest in entering a market or generating content from a photo. It is also possible for someone to allow fair use of a photo by posting it online. However, as indicated by the communication from Otto, neither is the case in this situation. The judge determined that Otto did not waive his copyright claim when he shared the photo with his friend. The issues of the damages that Hearst Communications will have to pay has yet to be decided.


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