In an attempt to share the spirit of anti-discrimination, Frank Ocean, during Friday 28 July’s performance at Panorama Music Festival in New York City, wore a white t-shirt which read “Why be racist, sexist, homophobic or transphobic when you could just be quiet?”. The inclusion of this question on his t-shirt has inadvertently brought to light a particular copyright issue, namely, whether a tweet can benefit from copyright protection?
The t-shirt was produced by an online shop called Green Box Shop, owned by eighteen year old Kayla Robinson in Southern Florida. Whilst sales of her company’s t-shirts have been modest, Saturday and Sunday’s sales following Ocean’s performance soared, reaching around 5,500 orders over that period. However, the slogan itself originated from a single tweet posted by New Yorker Brandon Male back in 2015.
In a statement by Robinson, she clarified that the quote had been suggested to her in Autumn 2016, for the purpose of printing on a t-shirt, but did not specify the source. Male himself has now twice complained to Green Box Shop: once early this year, the response of which was to credit his work through Instagram, and again following the Frank Ocean performance. In the latter case, Green Box Shop compensated Male to the amount of $100, which Male calculated to be less than one per cent of the sales figure over that weekend.
Whilst it’s becoming increasingly common practice to copy material posted on social media and use it for commercial benefit, such a practice is not legal without the holder’s permission. Copyright protection applies to a piece of work automatically and cannot be exploited legally unless consent has been obtained or an exemption applies.
In the case at hand, it may be argued that fair use exemptions could apply. These are relied on for the purposes of replicating work for commentary, criticism or education. As of yet, the use of material taken from social media falls into a grey area. For example, in 2014, Richard Prince exhibited his “New Portraits” installation at the Gagosian Gallery, which included the reproduction of Instagram photos on which he included his own comments below in an Instagram style. One such image was Donald Graham’s “Rastafarian Smoking a Joint”, which has been the basis of a dispute dating back to 2015. The continuing litigation draws similarities to Male’s quote, as the reliance of fair use stemming from social media has provided little clarity.
It should be noted that once the party exploiting the work does so for commercial gain, the owner of the work should find it easier to acquire a cease and desist order, or claim for damages. This has been evident in the proceedings issued by photographer Michael Miller who is pursuing Kendall and Kylie Jenner for the use of images of a variety of artists. The Jenners produced images of Biggie, Tupac and Ozzy Osbourne on t-shirts, with their own designs layered on top. Whilst there is no evidence the images themselves were taken from social media, the issue does remind us the importance of protecting image rights against unsolicited use and the backlash that can follow.
Only time will tell as to whether Male is fully compensated for the use of his tweet. We know Robinson and Male are in talks to clarify the numbers and consider due amounts for use of the quote. Whether this issue is brought to the courts in the United States, only time will tell.