Time Bomb: Newly Announced Trump Watch Designs Challenged by Associated Press Over Copyright Issue
Less than a month after Donald Trump announced his new line of high-dollar watches, the Associated Press is threatening the company who actually markets and plans (eventually) to deliver the timepieces with a cease-and-desist order, and further legal action if necessary.
The AP’s beef?
The image on the back of one of the watches was taken by an AP photographer, is owned by the AP, and was never licensed for such use, which equals a copyright violation if all these points are true.
But does the venerable news agency have a leg to stand on, or is time on Trump’s side in this matter?
Let’s take a closer look!
Who Owns the Picture?
In a similar case from last year, Trump’s campaign churned out a number of products featuring a jail booking photo, or mugshot in the vernacular, of the embattled former President and current nominee.
Unsurprisingly, a number of Trump’s political opponents did the same, hoping to get their own messages across with the help of Trump’s scowling, unrepentant visage. In a (not really) shocking (entirely predictable) plot twist, the Trump campaign threatened to go after unauthorized users of the photo to keep them from “scamming” legitimate donors. The irony in this case was that while Trump as a private citizen may have had some limited avenues to prevent such use, his campaign didn’t–and neither of these points take into account the salient fact that while Trump owns and has final say over the use of his likeness in many circumstances, the Fulton County, Georgia Sheriff’s Office is the photographer of record and therefore the putative owner of that particular iteration of Trump’s likeness. As of the writing of this article, I was not able to find one single court case relating to that specific picture, suggesting that none of the prospective plaintiffs to such an action are prepared to take the time or the risk involved?
What’s that you say? Objection! Relevance? Stick with me–we’re getting there.
In much the same way, Trump was photographed by an Associated Press photographer on July 13th, 2024, just moments after narrowly escaping assassination in Butler, Pennsylvania on the campaign trail. In the image, Trump’s fist is raised defiantly toward the crowd as a group of Secret Service agents work to get him, bloody-faced but unbowed and chanting, “Fight! Fight! Fight!” off the stage and out of potential sight and firing lines. It is worth noting that on October 21st, 2024, while I was writing this article, Trump echoed a sentiment expressed by former Wisconsin governor Tommy Thompson when he likened the snapshot to the iconic image of Marines hoisting the American flag over Iwo Jima during World War II. I present this fact for the sake of completeness in reporting without further comment.
This photo is at the center of Trump’s latest skirmish with the bounds of copyright law, and the parallels and differences between this and the mugshot photo strike are instructive in helping us predict what the potential outcomes might be.
Like the mugshot photo, although Trump is the subject of it, he is not the image’s owner. The First Amendment provision for freedom of the press means that Trump cannot own the image unless he purchases the ownership rights directly from the Associated Press, which would likely cost a whole lot more than a scholarship to Trump University and a couple of cases of Trump steaks. (Too soon? Right. Moving right along..). Similarly, like the mugshot photo, copyright law states the creator or producer of the original image owns the rights to it. Since in both cases the images in question were produced by people acting on behalf of and as duly authorized representatives of larger bodies, those bodies are considered the owners of the images and thus any and all rights to their use.
The likeness ownership question gets murkier still when we dig into the question of who owns the personal and private rights to Trump’s image. On paper, Trump retains those rights. In practice, several entities besides Trump himself have been granted license to use Trump’s image and likeness by Trump himself. One of the more prominent, and certainly most relevant in regard to the image under question, is the website GetTrumpWatches.com, which is owned by a company called TheBestWatchesonEarth LLC, itself a subsidiary venture by Wyoming attorney Andrew Pierce, the same agent of record who brought us GetTrumpSneakers.com, the online source for the Trump sneakers I wrote about back in February.
Qui Custodiet Ipsos Custodes?
领英推荐
My fellow law school alumni and classics lovers will undoubtedly already recognize the title phrase for this part, and the obvious but unapologetic pun to which it lends itself for purposes of this article. For everyone else, allow me to translate: “Who watches the watchmen?”
Initial reviews of the Trump watches ranged from harsh to scathing, attacking price point (around $800 all the way up to a cool $100k), appearance (“...a Rolex Submariner described down a patchy phone line”), quality, craftsmanship ("the most tragic celebrity watches ever"), and even the integrity of the so-called “Tourbillon” action which regulates the watch’s timekeeping ability and whose fragility would render the watches with which it is equipped unsuitable for daily wear. One point I would have expected the pundits to go hard on was the site’s apparent pride in stating openly that the components, rather than being sourced here in America as would seem a logical choice befitting a once and hopeful future American President, are half-Chinese, half-Swiss-made.?
Missed opportunities to get in some extra sick burns aside, the Fighter (or the Fight Fight Fight watch) is the cheaper of the two men’s offerings on GetTrumpWatches.com–and at this moment, the more controversial. In addition to the accusations of gimcrackery discussed above, this is the watch on which Trump wants the picture of himself just after the assassination attempt engraved.
In stark contrast to the mugshot debacle, it is unlikely that Trump or GetTrumpWatches are likely to have it all their own way. The Associated Press is much more likely to follow through on any legal threats it makes, in part because of its heightened awareness of the stakes which the optics of failing to do so would impart, but more importantly because images like the assassination-attempt-aftermath Trump picture are literal gold in the company’s IP coffers and the AP is keenly aware of the necessity to vigorously defend its intellectual property from all comers–even if one such comer happens to be the subject of the IP in question.?
With this in mind, I think we’ve answered the question of who watches the watchmen in this case. Now the question becomes what we can expect to see next.
The Bottom Line
With so many of the previous threats of legal action against Trump for his various alleged IP rights infringements having proven to be so much “sound and fury, signifying nothing,” I imagine the next steps will look something like this:
Regardless of how this plays out, it’s likely to have an unusually large impact on how IP rights are litigated, just based on the reputational shadows cast by the primary players. And that alone will make this case one to watch very carefully–for practitioners of IP law and those whom it is intended to protect.?
ABOUT JOHN RIZVI, ESQ.
John Rizvi is a Registered and Board Certified Patent Attorney, Adjunct Professor of Intellectual Property Law, best-selling author, and featured speaker on topics of interest to inventors and entrepreneurs (including TEDx).
His books include "Escaping the Gray" and "Think and Grow Rich for Inventors" and have won critical acclaim including an endorsement from Kevin Harrington, one of the original sharks on the hit TV show - Shark Tank, responsible for the successful launch of over 500 products resulting in more than $5 billion in sales worldwide. You can learn more about Professor Rizvi and his patent law practice at www.ThePatentProfessor.com
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