Every photographer dreads the moment their work gets stolen — but what happens when the President of the United States is the thief? Last night, Donald Trump took Mike Kelley’s most iconic photo and turned it into a controversial deportation meme. Will this lead to one of the more interesting copyright cases in recent history?
Mike Kelley is a pretty well known architectural and fine art photographer who has been featured on Fstoppers a lot over the years. We’ve produced several masterclass style educational series with him called Where Art Meets Architecture, and he’s appeared on the Fstoppers Youtube channel more times than I can count. To say we are acquaintances would be an understatement. Mike is like family here on our popular photography based blog. His work has been an inspiration to millions of aspiring photographers, and Mike has been commissioned to shoot for thousands of architects, interior designers, luxury home builders, and advertising agencies across the world.
You can imagine my surprise when Mike shared a single image of one of his most iconic art pieces with the words “let the deportations begin!” plastered over it. On May 30th, Donald J Trump posted the following post on Truth Social:
To add some context to Donald Trump’s post, the image featuring all the airplanes taking off at LAX is an image Mike Kelley created called Wake Turbulence. The graphic image of every plane departing LAX throughout an 8 hour period went extremely viral when it was first published back in 2014. Since then, it has been written about by hundreds of online and in print publications, sold as large fine art prints in museums and to art collectors, and even Snoop Dogg retweeted Mike’s original Instagram post. The insane amount of press this single image gave Mike Kelley prompted him to continue the series at different airports around the world which led into the full series Airportraits. You can read more about Mike’s creation of this image from his guest article on Fstoppers back when it was first published.
Mike is no stranger to his work going viral, and he’s also no spring chicken when it comes to companies and private businesses stealing and infringing his copyright work. A few years ago I sat down with Mike to talk with him about what photographers can do when their work goes viral and inevitably gets stolen. Many photographers might wonder what legal rights they have when someone is devaluing their work, using their images for commercial usage without the proper licensing, and where the line is between a fair use article that might be promoting a photographer’s work verses someone who is blatantly stealing or distributing work for commercial or personal gains. If you want to watch this long form interview, you can check out the video below.
What to do when the President of the United States Infringes on Your Work?
The above question seems strange even as I write it now. For most photographers, having any president from any country acknowledge or promote your work would seem like a dream come true. It would most certainly be an honor and the story would be told to all your friends, family, and peers. However, when Donald Trump, an already polarizing president and business person, posts your most famous image without credit and devalues it by making it an ad campaign for his deportation agenda, well that might not be the sort of story you would want to share with anyone. In today’s polarized environment, it could be career suicide if half of the country thinks your work is promoting an unpopular or even hated political policy.
At the time of this article, nearly 24 hours after the publication on Truth Social, Donald Trump’s post has 1.28K comments, 21k hearts, and nearly 5k shares. You can then add the thousands of posts being shared on Threads, X (formerly Twitter), Facebook, Instagram, and Tiktok. Many of these accounts have millions of followers and most of them have likely seen Mike’s image on their feeds. For many, this might be the only time they ever see one of Mike Kelley’s images on their feeds.
Luckily for Mike, almost all of his published images have been registered through the US Copyright Office. This offers a lot of protection for infringements and makes the case against any infringer extremely cut and dry in the court of law. Most photographers are aware that the copyright to an original piece of work (their image) is instantly granted the second it transforms into a tangible form after you fire the shutter or save an edited image from Photoshop. However, in US copyright law, there is a huge difference between simply owning the copyright and actually registering it with the copyright office. Let me explain.
Owning the Copyright
Under the Copyright Act of 1976, anyone owns the copyright to their original work the moment it is fixed in a tangible form such as a print, digital file, or negative. Owning your own copyright gives you the right to reproduce, distribute, display and license your work, but unfortunately it does not give you the right to sue for infringement in court and more importantly it doesn’t give you the right to statutory damages and/or your attorney’s fees to be paid by the infringing party.
Many armchair photographers will tell you the first thing you need to do if your work is infringed upon is you need to file a lawsuit, but in the United States you are not even legally allowed to file a lawsuit until the work is registered. Furthermore, statutory damages are only available if the work was registered before or nearly after the infringement occurred.
Owning the Registration
In terms of protecting your copyright from infringers, the only way to do this is to register your images through the US Copyright Office. This means you pay a fee and upload your work(s) to the Copyright.gov website. This gives you four unique protections:
You can now sue for copyright infringement. You must have a registration to even begin this process
You are entitled to statutory damages and attorney’s fees. The caveat is your must have registered your work within 90 days of first publication OR 90 days within the first publication of the infringement itself.
Registration gives proof to the court that you actually own the copyright, and it establishes the date you own it
It prevents infringers from being able to claim the “innocent infringer defense” whereby the infringer argues they were unaware the image was protected or any negligent or willful infringement occurred.
Each of these protections have their own nuances and benefit but by far the two most noteworthy ones are the ability to sue for statutory damages instead of actual damages and the protection it gives against the innocent infringer defense.
Actual Damages vs Statutory Damages
If your image gets stolen and you are in the unfortunate situation that it wasn’t registered by the copyright office, you can sue the infringer but only after you register it. However your registration will likely be too late to ever claim statutory damages. Therefore the only damages you will be able to sue for are actual damages. Actual damages are described as the amount of money or loss of income you incurred by the infringement of your image. If you typically license an image for $100 or maybe $3000, that would be the amount of money you could possibly win in a lawsuit. If a publication typically pays $500 to license an image, that amount could be at play too. If you make prints that sell for $75 each, and the infringement was a stolen print, then you could sue for $75. For the most part, these numbers are small enough that filing a lawsuit is probably not even worth the hassle.
The problem with actual damages is that you have to first prove that your work generates the amount of money you are claiming was lost. You simply can’t say your image is worth $6000 and have any federal judge award that amount. You need receipts of previous sales and you need to set a precedent that the fees you are asking for fall in line with your normal business operations. So any non professional who just casually takes photographs and publishes them online will most likely never be able to claim actual damages even if their work was stolen and used in a massive media campaign. It simply doesn’t work that way. You can also prove the amount of income the infringer made by using your image, but that can be extremely tricky to accurately claim without discovery of financial statements.
That’s where statutory damages comes in, and it gives the photographer a tremendous amount of leverage. If your work is registered, you do not have to prove actual damages at all. Instead the court will issue monetary damages set by law that aren’t dependent on harm or loss in profit. Depending on how a judge rules on your case, statutory damages could fall in one of these three judgements:
Innocent Infringement – an infringement that wasn’t known but still not excusable. Fines range from $750 – $30,000
Standard Infringement – an infringement that shows normal signs of reasonable infringement. Fines range from $750 – $30,000
Willful Infringement – any infringement that is willing, intentional, knowing, or reckless use. Fines range up to $150,000
Keep in mind, these infringements are per infringement, and publication on multiple platforms or of multiple images could result in multiple fines.
What is Mike’s Case?
Clearly Mike Kelley meets the requirements for statutory damages because he religiously registers his work even before he publishes it. The main arguments he will have to argue is was the infringement innocent or willful and what, if any, protection does the President of the United States have against his actions on Truth Social, a non government media platform.
I’m curious to see how this plays out, and to be clear, a lawsuit hasn’t even been filed yet, but I have no doubt it will eventually. I could easily see a judge agreeing that Trump’s actions in posting this post could be viewed as reckless simply because of the authority he has on a world stage and the responsibility someone holds being president of the United States. Donald Trump has countless staff, multiple assistants, and a whole host of people to vet anything he publishes, and we have the most sophisticated tools ever to research where an image originates from.
Mike’s attorney’s will also have to decide exactly who to file the claim against. Would litigation be filed against Trump himself or perhaps Truth Social as well? Would it make sense to serve a lawsuit against any other high profile individuals who promoted the post as well such as Trump’s children, popular social media influencers, or other businesses?
Another big part of this case will involve the legal protection a sitting president has for official acts done under the presidency. In the recent July 1, 2024, case Trump v. United States, the Supreme Court ruled that former presidents are generally immune from criminal prosecution for actions taken in their official capacity. However, this only covers official actions done in the office of presidency. Since Truth Social is a private company and not part of any governmental oversight, it seems pretty clear that his actions on his own social media platform wouldn’t fall under this protection. Also copyright infringement cases are typically civil cases but if willful and reckless enough, they could be considered criminal.
Finally, if any of this case does fall into the official dealings of the United States, Mike’s federal lawsuit could force the United States Government to be a defendant under the Copyright Remedy Clarification Act. I’m sure suing the government would require a completely different plan of action and could be magnitudes more challenging than simply litigating against a single person like Trump himself.
Legal History
Today I spent a little time researching lawsuits against sitting presidents and this specific situation seems to be unprecedented. If Mike does file a lawsuit against Trump, it’s very possible his case could become the defining case in determining the liability a sitting president has when sharing and exploiting copyrighted works through a private platform like Truth Social.
Below I’ll list a few cases, all ironically against Donald Trump, where the plaintiff filed a case against the presidential nominee during the election campaign. These are mostly from musicians who own copyright on their musical works that were being used at Trump rallies. Notably, the Isaac Hayes estate case just recently won a big victory when the judge denied Trumps motion to dismiss. Trump was using Isaac Hayes’s song “Hold On, I’m Comin” at his campaign rallies and the copyright holder is suing Trump for unauthorized use of copyrighted material for a commercial and political purpose.
Don Henley vs Donald Trump Campaign – Eagles songwriter claimed infringement against Trump’s campaign for commercial usage of songs he wrote.
Eddy Grant vs Donald Trump – This case ruled that the musician could sue Trump as an individual and not as the president
Zervos v. Trump – This case ruled that a sitting president is not immune from civil lawsuits for unofficial acts.
Warhol Foundation v. Lynn Goldsmith – This case rules on how copyright of an underlying images can be upheld if a new work isn’t deemed transformative enough. It could perhaps be applied to memes where simple text is added on top of a registered image.
Your Thoughts?
What do you think will happen to this case when it is filed? Obviously something like this will take years to make its way through the courts, and perhaps Trump will not even be president by the time it makes it to the Federal 9th Circuit Court of Appeals where it will most likely reside. Do you think Mike has a strong enough case for Willful Infringement under statutory infringement or because this is a meme that perhaps originated somewhere else on the internet, could it be viewed as unwilling? Do you think Trump would ever succeed at claiming his posts on Truth Social fall under official acts of a sitting president? I’d like to hear your opinion in the comments below.
Protect Yourself Against Infringements
If you want to learn more about how you can register your own work with the US Copyright office as well as a bunch of practical ways you can enforce your copyright against companies infringing your work, check out the photography tutorial we produced with commercial photographer Monte Isom called Making Real Money: The Business of Commercial Photography.
This 14 hour tutorial is unlike any other tutorial on the market because it doesn’t cover anything about actually taking a photograph. Instead it focuses on all the secret information needed to find clients, building competitive treatments, pricing out complex multi page bids, hiring an agent, lowering tax liabilities, working with advertising agencies, winning a tax audit, working with producers, negotiating deals, shooting directly with brands, and even navigating through copyright and litigations. We interview all sorts of high end producers who work for ESPN, Facebook, Hollywood movie poster companies, and ad agents in New York City. It’s perhaps the most valuable tutorial we’ve ever produced for a photographer looking to push their career to the next level.
Monte is one of the most knowledgeable people I know when it comes to copyright infringement (he had Nike infringe on an image he shot of Lebron James and aired it during the Superbowl). Interestingly enough, Mike Kelley and I often chat with Monte privately about these matters and if you purchase his tutorial Making Real Money: The Business of Commercial Photography, you will gain access to Monte through his private Facebook group. The information shared in that group is unlike any other photography mastermind group I’ve been a part of and it’s super interesting seeing how other photographers are building out their commercial bids, winning jobs against other photographers, licensing their work for multiple years, and yes, even navigating and litigating through the perils of copyright infringement cases.
Here is a free lesson from this tutorial and it specifically covers copyrighting your work
Editor Note: For those asking about using Mike’s image on our Youtube video and this article, we have been given permission directly from Mike Kelley and the use of his image falls under fair use because we are giving commentary about the work itself. Trump’s post does not give any sort of commentary on Mike Kelley or his work at all and therefore would not qualify for fair use.