By Victoria Dishner
What do President Trump and Nickelback have in common? They have received worldwide recognition, garnered internet fame, and reaped the criticism of many Americans. Recently, this duo made the news after a Twitter tiff involving a Nickelback meme. The Nickelback meme, beloved by the Internet community, features a clip from a music video of the the band’s 2005 hit “Photograph.” Nickelback front man Chad Kroeger holds a photo frame and serenades listeners with the first ten seconds of the song: “Look at this photograph. Every time I do, it makes me laugh.” Typically, meme-creators replace the photo frame’s original picture with one of their own as the tune plays in the background. As the meme has made its rounds on the internet, users have edited the frame to display anything from a basket of cats to line graphs.
Meanwhile, Democratic presidential candidate Joe Biden has been in the hot seat fielding concerns over his son’s overseas business activities. So, President Trump capitalized on this controversy by jumping in on the Nickelback meme craze to criticize the candidate. On October 2, 2019, President Trump tweeted “LOOK AT THIS PHOTOGRAPH!” and attached a video of an interviewer asking Joe Biden if he had ever spoken to his son about his overseas business activities. Biden replied that he had not. Then, the video transitions into a snippet of the “Photograph” music video where the contents of Kroeger’s photo frame have been replaced with a photograph of Biden, his son, a gas executive from the Ukraine, and another man, implying that Biden did have knowledge of, and potentially had a hand in, his son’s foreign business dealings.
Soon after, Warner Music Group, Inc., the owner of the rights to the “Photograph” music video, submitted a takedown request under the Digital Millennium Copyright Act (“DMCA”). Twitter removed the content in two days’ time and left in its place the explanation, “this media has been disabled in response to a report by the copyright owner.” While this seems to be an effective move to curb unwanted association between Nickelback and the President, could it be an abuse of the DMCA?
The DMCA and Lenz
Congress enacted the DMCA in 1998 to “implement United States treaty obligations and to move the nation’s copyright law into the digital age.” The DMCA enables “service providers to avoid copyright infringement liability for storing users’ content if—among other requirements—the service provider ‘expeditiously’ removes or disables access to the content after receiving notification from a copyright holder that the content is infringing.” In order for the copyright holder to submit a DMCA take-down request, he must include a statement that he believes in good faith the infringing material is not authorized by the copyright owner, its agent, or the law.
In 2016, the Ninth Circuit Court of Appeals further explained this requirement. In Lenz v. Universal Music Corp., a copyright holder requested that YouTube take down a video of a child dancing to Prince’s “Let’s Go Crazy.” Lenz, the creator of the video, argued her use of the song was a fair use and therefore non-infringing. Because a fair use of copyrighted work does not infringe on the rights of the copyright holder, “[it] is not just excused by the law, it is wholly authorized by the law.” Lenz essentially claimed that copyright holders were abusing the DMCA’s extrajudicial takedown mechanisms by enticing providers to remove unflattering videos through the threat of litigation without ever evaluating whether the reproduction qualifies as fair use. The court held that “the DMCA requires copyright holders to consider whether potentially infringing material is a fair use of a copyright under 17 U.S.C.S. § 107 before issuing a takedown notification to a service provider.” Thus, it is not proper to strong-arm providers into removing non-infringing content; the DMCA primarily protects intellectual property rights instead of protecting parties from unflattering fair uses.
Fair Use of “Photograph”
Courts look to a four-factor test to determine whether or not a use of a copyrighted work is a fair use. In 1976, Congress codified this test as follows:
“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”
The President’s meme arguably meets the marks of a fair use of the “Photograph” music video. First, the “purpose and character” of the video’s use is not of a commercial nature. Users do not pay to repost or reproduce the Nickelback meme. Moreover, President Trump did not tweet the video to turn a profit. Second, the test looks to the amount and substantiality of the portion used in relation to the copyrighted work as a whole. The meme utilizes approximately ten seconds of the “Photograph” music video. Additionally, the meme contains only one line of lyrics. This is not a substantial portion of the video or the song, each lasting several minutes. While the Nickelback meme provides the punchline necessary for the President’s tweet, most of the video is comprised of footage of Biden’s interview instead of Nickelback’s song. Third, the effect of the use upon the potential market for or value of the copyrighted work is virtually unaffected. No reasonable person would refer to President Trump’s video as a replacement for downloading the original song or watching the music video. On the contrary, the virality of the meme increased demand for the original “Photograph,” which received 771,000 song listens and music video views between October 2 and October 3. Therefore, according to the factors set forth by Congress, President Trump’s use of the Nickelback meme is an honest candidate for fair use.
What does this mean for the President’s meme?
Lenz suggests that Warner Music Group, Inc., must say in good faith that it believed the reproduction of the Nickelback meme did not qualify for fair use and therefore infringed on its copyright. This is not an objective standard of reasonableness, but a subjective good faith belief. The Lenz panel held that the applicable standard to defeat this good faith belief is willful blindness. To show that Universal was willfully blind, “Lenz must demonstrate a genuine issue as to whether—before sending the takedown notification—Universal (1) subjectively believed there was a high probability that the video constituted fair use, and (2) took deliberate actions to avoid learning of this fair use.” Lenz would need to show that the copyright holder knowingly misrepresented its good faith belief that the content was not a fair use.
Likewise, on the off-chance litigation ensued from
this Twitter exchange, the President’s legal team would have to show that
Warner Music Group, Inc., subjectively believed there
was a high probability that the video constituted fair use and knowingly
misrepresented that they believed it did not. Even if a court found that Warner Music
Group’s belief ultimately was mistaken, it would not impose liability without
evidence of a knowing misrepresentation. While it might seem burdensome to prove Warner
Music Group’s subjective belief was different from its representations to
Twitter when it sought to remove the “Photograph” clip from the President’s
timeline, the Lenz panel shows a
court may entertain such arguments. Thus, Lenz
cautions copyright holders in flippantly invoking the DMCA to remove content,
especially internet memes, which may qualify as fair use. Even if a legal claim cannot stand due to the
low threshold of a subjective good faith belief, copyright holders should still
think twice before submitting take-down requests; after all, the President
might also take extrajudicial measures and, at the very least, turn reckless
DMCA-abusers into memes.
 Hannah Yasharoff, Trump’s Nickelback tweet led to a major streaming surge for the band, USA Today (Oct. 8, 2019, 10:59 AM), https://www.usatoday.com/story/entertainment/music/2019/10/08/trump-nickelback-tweet-streaming-surge-photograph-song/3906138002/.
 Trump’s Banned Nickelback Twitter Meme Explained, Variety (Oct. 4, 2019, 4:51 PM), https://variety.com/2019/music/news/trump-banned-nickelback-twitter-meme-explained-1203360017/.
 David Friend, Use of celebrity memes in politics raises stakes for copyright owners, Coast Mountain News (Oct. 5, 2019, 8:10 AM), https://www.coastmountainnews.com/news/use-of-celebrity-memes-in-politics-raises-stakes-for-copyright-owners/.
 Katie Glueck & Alexander Burns, Can Joe Biden Deliver the Debate Performance He Needs?, N.Y. Times (Oct. 14, 2019), https://www.nytimes.com/2019/10/14/us/politics/joe-biden-democratic-debate.html.
 Donald J. Trump (@realDonaldTrump), Twitter (Oct. 2, 2019, 5:06 PM), https://twitter.com/realdonaldtrump/status/1179502966606352386?s=12.
 Variety, supra note 2.
 DMCA notice to Twitter, Lumen, https://www.lumendatabase.org/notices/19309383?access_token=CnrXDClg2YjnAQ9SY3KtnQ (last visited Oct. 15, 2019).
 Timothy B. Lee, Twitter nixes Trump Nickelback meme after dubious takedown request, ArsTechnica (Oct. 3, 2019, 11:39 AM), https://arstechnica.com/tech-policy/2019/10/twitter-nixes-trump-nickelback-meme-after-dubious-takedown-request/.
 U.S. Copyright Office, Executive Summary: Digital Millennium Copyright Act, https://www.copyright.gov/reports/studies/dmca/dmca_executive.html (last visited Oct. 15, 2019).
 Lenz v. Universal Music Corp., 815 F.3d 1145, 1148 (9th Cir. 2016).
 17 U.S.C.S. § 512(c)(3)(A) (2019).
 Lenz, 815 F.3d at 1145.
 Lenz, 815 F.3d at 1152.
 17 U.S.C. § 107 (2019).
 Lee, supra note 12.
 17 U.S.C. § 107 (2019).
 Lee, supra note 12.
 Yasharoff, supra note 1.
 See Lenz, 815 F.3d at 1149.
 Id at 1153.
 Id at 1155.
 Hosseinzadeh v. Klein, 276 F. Supp. 3d 34, 44 (S.D.N.Y. 2017) (“A copyright holder is not liable for misrepresentation under the DMCA if they subjectively believe the identified material infringes their copyright, even if that belief is ultimately mistaken.”).
 Lenz, 815 F.3d at 1157.