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Franklin the Turtle Sues in the Court of Federal Claims for a Reasonable Licensing Fee (Well, Not Yet)

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There's been some talk about whether the Administration's use of Franklin the Turtle in various memes (e.g., "Franklin Becomes a Deportation Judge," shown above) is copyright infringement. My sense is that it probably would be: It uses a copyrighted character, and it likely isn't a fair use, despite its noncommercial character.

To oversimplify vastly, use of a work to make fun of the work itself (or to otherwise comment on it) generally tends to be fair use, see Campbell v. Acuff-Rose Music (1994): You just can't have an effective parody or commentary on a work without including enough of the underlying work. But use of a work to comment on something else, even in a humorous way, generally tends not to be fair use. See, e.g., Dr. Seuss Enterprises v. Penguin Books (9th Cir. 1997). The question for parody fair use purposes is generally whether the use is "reasonably necessary to achieve the user's new purpose" and "'needs to mimic [the] original to make its point,'" see Andy Warhol Foundation v. Goldsmith (2023); that seems not to be so here. To be sure, the fair use inquiry is notoriously mushy, so it's hard to predict for certain; but that's my best guess.

At the same time, even if this is an infringement and not a fair use, the usual panoply of copyright remedies that would normally be available—including injunctions, potentially massive statutory damages, and potential attorney fees—will be largely unavailable. A federal statute, 28 U.S.C. § 1498(b), provides that the exclusive remedies for this are just actual damages (or, if the owner elects, the minimum statutory damages, which will likely be $750), and that the plaintiff has to sue in the Court of Federal Claims to get them. No injunctions; no recovery of attorney fees or costs. And actual damages would likely just be a reasonable license fee:

Normally, a copyright owner proves its entitlement to damages under the Copyright Act through evidence of lost sales or diminished copyright value. But when, as here, copyright infringement has not produced lost sales or opportunities or diminished the copyright's value, damages are instead calculated based on a reasonable license fee, which we determine using a hypothetical negotiation. We use this method to prevent the "infringer [from] get[ting] his taking for free" and to ensure that copyright owners are not "left uncompensated for the illegal taking of something of value." …

We must assume that this negotiation is between a willing buyer and a willing seller. This means that sellers cannot charge what they would like to as if "unconstrained by reality," and buyers cannot simply name a price that they "would prefer to pay." While we need not assess the license fee with "mathematical exactness," we must be able to reasonably approximate it. Still, "[s]ome difficulty in quantifying the damages attributable to the infringement should not bar recovery." …

Essentially, the statute lets the government implement a sort of taking of the nonexclusive rights to use a copyrighted work: The government can use this intellectual property, but has to pay just compensation, which will likely be fairly modest in this case. To quote the Court of Federal Claims as to the similar question of patent infringement (covered by 28 U.S.C. § 1498(a)),

The government's unauthorized "use or manufacture" [of a patented work] under Subsection 1498(a) is analogous to a taking of property under the Fifth Amendment to the Constitution. The government "takes" a non-exclusive and compulsory license to a United States patent "as of the instant the invention is first used or manufactured by the [g]overnment."

Analogously, when the government uses a copyrighted work in a way that isn't a fair use, it takes a nonexclusive and compulsory license to the work, and must pay actual damages or $750, whichever is higher.

It also seems to me that there'd be no traditional trademark infringement claim because there's no real likelihood of confusion as to source or endorsement. And a trademark dilution claim would fail because the use is noncommercial. Finally, I don't think that the fact that the copyrighted work or trademark was created in Canada affects the analysis.

So whatever one might think of the ethics or taste of what the government is doing here, it appears to be essentially authorized under American law, but with the requirement of modest compensation.