On the day I posted about copyright myths the POTUS’ team gave us an epic case study. Is the use of his head on Thanos’ body infringement?
The Fair Use doctrine stems from the Constitution and allows certain limited uses of copyrighted materials without permission. This doctrine is fact specific and can only be asserted after accusation of infringement. It is a defense and therefore can be hard to rely upon prior to using a work. POTUS has shown he is more of an apologize later (or never) than an ask permission guy. There was no permission here. Disney did not okay this. They fiercely protect their IP. Since he used an actual clip of the movie, it would clearly be infringement; the question is, was this fair use?
Examples of fair use can include parody, criticism, comment, news reporting, teaching, scholarship, and research. Some of these uses would allow making multiple photo copies, such as in a classroom setting. Any one remember dittos?
The one potential defense here is parody. The problem is that this would probably be more satire. Satire uses a particular work as a weapon for attacking an unrelated target, in parody the work is the target. Parody needs to mimic the work to make it’s point. DT is not criticizing the Avengers. He is criticizing his opposition and using a protected work to convey a message. This is more satire or “weapon parody” which is not protected by fair use.
When running it through the fair use factors, DT would seem to fall short. The factors: the purpose and character of your use; the nature of the copyrighted work; the amount and substantiality of the portion taken; and the effect of the use upon the potential market. The purpose was essentially commercial and aimed to strengthen a political campaign. Therefore it is a weaker claim at a parody. The nature of the work copied is not fact based. Fiction is usually tougher to claim fair use than factual works. The amount could arguably be substantial. Since it is an actual clip from Endgame, but is not parodying Endgame, even a small bit is substantive. As far as effect on the market, I don’t think Marvel will suffer. But the factors seem to weigh against fair use.