Weaponizing Copyright and Non-Copyright Objectives
Consider these two seemingly different scenarios. In the first, a police officer, facing a provocateur recording him with a cell phone camera, pulls out his own phone and blasts a Taylor Swift song. In the second, a home owner, after discovering to her horror that her Martha’s Vineyard residence was used as a set for pornographic videos, obtains a copyright registration for the home’s decorative accessories and files an infringement suit in federal court. What do these two scenarios have in common? Both the police officer and the home owner are allegedly “weaponizing” copyright, using copyright to achieve “non-copyright” objectives. In both instances, a copyright for a work in the background has been seized upon as a vehicle to silence an opponent or to punish wrongdoing.
For those not steeped in copyright law, unpacking some of these issues begins with understanding the way the law treats “incidental” or “ambient” use of copyrighted works. Because a copyright attaches to original works of authorship immediately upon their creation in a tangible medium of expression, a copyright is relatively easy to obtain. And anyone wielding a copyright has significant reach because anyone else—whether intentionally or not—who reproduces, publicly displays, distributes, or creates derivatives of the work potentially infringes the copyright.
So what about the police officer jamming to Taylor Swift? Rather than weaponizing his own copyright, the officer is actually relying on Taylor Swift’s copyright and social media’s algorithms. This BBC story analyzes this phenomenon in more detail, but in short, the officer is hoping that any attempt by the provocateur to upload a “gotcha” video of her encounter with the officer will be blocked by the platform’s algorithms designed to preclude copyrighted music from posting…