UPDATE: As we suspected might be the case, the Michael Jordan and Donald Trump images are not the actual artwork for ScHoolboy Q’s new album. The rapper went on TMZ today to share the real cover, which you can see here.
Earlier this week, ScHoolboy Q shared the artwork for his forthcoming Blank Face LP: a framed, altered version of the photograph behind the Crying Jordan meme. Michael Jordan’s face is concealed but his identity is clear.
A day later, Q shared his deluxe artwork, a similarly styled (blank) photo of none other than Donald J. Trump. The covers—which more than a few still believe to be nothing more than a social media play—swept through the internet at great speeds.
While the artwork provided plenty of us an opportunity to think, laugh, or crack jokes, the fact remains that pictures of other people could be included in the packaging of a commercial product. In short, it falls under the stateside governance of intellectual property laws. If TDE and Interscope didn’t clear the use of those images, Q and his team could be liable. The chief concern here is that Trump or Jordan could accuse him of profiting by capitalizing on the publicity they afford. Oh, the legal oddities of hip-hop.
“Since its quite obvious who the pictures are of, even though the faces are obscured, theoretically they could have right of publicity claims against ScHoolboy Q,” Jessica Meiselman, a NYC-based lawyer, wrote in an email to P&P. “The elements of these types of claims vary from state to state but are basically available when a person’s name or likeness is used for commercial purposes without their consent… Whoever took the photos could also have a copyright claim against ScHoolboy Q if they didn’t clear the use of the images.”
A quick aside for some meme history: The suited photo of NBA legend Michael Jordan was captured on September 11, 2009 during his induction ceremony for the league’s Hall of Fame—a beautiful example of the capacity for tears of joy to bring tears of joy to others. Stephan Savoia stood behind the lens as a photographer for the Associated Press. AP or Savoia would then be considered the copyright owners of the image in question.
Fortunately for Q, one legal element might provide a saving grace. “There’s a good defensive argument on Q’s behalf that the use is transformative and the use of the images doesn’t imply any endorsement or support from Trump or Jordan.”
In cases concerning publicity, the transformation test is used to decide whether the depiction of a celebrity is protected by the First Amendment. If a piece (i.e. Q’s artwork) significantly alters the individual’s identity or likeness, it is transformed and protected by law. If not, right of publicity is overpowering.
Regarding copyright infringement, transformative law is an important piece to the “fair use” puzzle, a notorious term whose definition and boundaries are anything but stagnant. Courts determine whether or not something falls under fair use protection. Before a ruling is reached, all one can really do is try to guess how likely that label might be. When a content piece is transformative—adding a layer, changing some component that’s deemed significant or advancing the contested piece—it’s generally protected. When the new rendition is considered derivative, copyright violation becomes a real possibility.
Campbell v. Acuff-Rose Music, Inc., a 1994 Supreme Court case, played a major part in establishing transformation as a key distinction between fair and unfair use. The plaintiff, Acuff-Rose Music, Inc., owned the copyright for Roy Orbisonis’ 1964 song “Oh, Pretty Woman.” Decades later, hip-hop group 2 Live Crew penned a parody of the rock track; leading man Luther Campbell subsequently found himself the defendant of the lawsuit. The United States Federal Copyright Act considers criticism fair use, and the ultimate decision in the 1994 legal battle found parody deserving of similar protection. It’s what allowed Weird Al Yankovic to have a career.
“Given the cultural context surrounding the Jordan crying face,” Meiselman continues, “it seems unlikely that he would object, but I wouldn’t be surprised if Trump did.”
Trump has become something of a stand-in mascot for lawsuits over the course of his career, and his tendency to wield the law against his enemies has repeatedly colored the ongoing presidential race. Earlier this year, he threatened to sue both former GOP rival Ted Cruz and the New York Times. Editors of The Atlantic even penned a 2013 list that compiled the business tycoon’s most notable litigations. Some of our readers might remember the day The Donald crossed paths with hip-hop, tweeting that he’d sue Q’s friend Mac Miller over his famous 2011 single and “teach [him] a big boy lesson about finances.”
Although intellectual property laws serve an important purpose in protecting against thievery and malicious conduct, they open doors for countless headaches—a troublesome truth for those of us just looking to have fun on the internet. Part of the Interscope family, Top Dawg Entertainment should have access to a legal department that would clear any copyright issues ahead of a content release this blatant: it’s easier to hide a sample than it is Crying Jordan on an album cover.
Pigeons & Planes reached out to Interscope for comment, however they have neither confirmed or denied if this is the real album artwork. If the cover is nothing more than a clever marketing move and separate from the retail product, Q’s risk of litigation should diminish considerably. Time will tell if consequences follow his artistic decision or if the images peacefully go down as a memorable moment in Twitter history.