Media, Politics, Torts

NBC Demands Trump Campaign Take Down Parody Video

There is an interesting controversy brewing between NBC and the Trump campaign over a parody using the image of NBC News senior Capitol Hill correspondent Garrett Haake. The network has asked the campaign to take down the video that attacks Trump’s political opponents while using a voiceover that sounds like Haake. While  Trump senior adviser Chris LaCivita has pointed out that this is parody “to keep @NBCNews Lawyers off my a**,” it may not be enough. NBC could have a case under torts.

The video was still available on social media this morning after being shared by LaCivita. It is not clear who made the video, however.

NBC News has demanded that Donald Trump’s campaign remove a video which opens with a real news clip of NBC News senior Capitol Hill correspondent Garrett Haake previewing the presidential debate. However, it then cuts away to a voiceover sounding like Haake that attacks Trump’s opponents. The voiceover says  “This is Ron DeSantis: An establishment RINO that wears insoles in order to look taller,” the voiceover says. “ It adds: And this is Nikki Haley… Nobody really gives a shit about Nikki Haley.” It also attacks the other candidates.

LaCivita tweets “Now this is reporting ! Watch till the end! @NBCNews”

LaCivita, later tweeted: “Now this is reporting!” Shortly after posting the video, LaCivita followed up: “To keep @NBCNews Lawyers off my ass, please note…. THIS IS A PARODY!”

The clip does end with a Trump campaign song and pitch — reinforcing the parody acknowledgment.

If the videotape was done by (or at the behest of the Trump campaign), it could find itself in a torts lawsuit. If it is a reposting alone, there could be greater defenses in sharing a video that has drawn attention in the campaign, though NBC could still claim that the Trump campaign is replicating the violations.

The most obvious tort is false light.

Under a false light claim, a person can sue when a publication or image implies something that is both highly offensive and untrue. Where defamation deals with false statements, false light deals with false implications.

For example, in Gill v. Curtis Publ’g Co., 239 P.2d 630 (Cal. 1952), the court considered a “Ladies Home Journal” article that was highly critical of couples who claimed to be cases of “love at first sight.” The article suggested that such impulses were more sexual than serious. The magazine included a photo of a couple, with the caption, “[p]ublicized as glamorous, desirable, ‘love at first sight’ is a bad risk.” The couple was unaware that the photo was used and never consented to its inclusion in the magazine. They prevailed in an action for false light given the suggestion that they were one of these sexualized, “wrong” attractions.

In 1967, the Supreme Court handed down Time, Inc. v. Hill, which held that a family suing Life Magazine for false light must shoulder the burden of the actual malice standard under New York Times v. Sullivan. Justice William Brennan wrote that the majority opinion held that states cannot judge in favor of plaintiffs “to redress false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or reckless disregard of the truth.”

Haake has an obvious false light claim here.

However, he may also have a claim under appropriation of name or likeness.

Parody and satire can constitute appropriation of names or likenesses (called the right to publicity). The courts, including the Ninth Circuit, have made a distinctly unfunny mess of such cases. Past tort cases generally have favored celebrities and resulted in rulings like White v. Samsung, a perfectly ludicrous ruling in which Vanna White successfully sued over the use of a robot with a blonde wig turning cards as the appropriation of her name or likeness. It appears no blonde being — robotic or human — may turn cards on a fake game show.

It is not, however, clear that this was done for a commercial as opposed to a purely political purpose.

In 1988, the court handed down the important free-speech decision in Hustler Magazine v. Falwell, holding that an offensive cartoon of Rev. Jerry Falwell was protected under the First Amendment from civil liability.

Again, if the campaign did not produce the video, it could claim protection for sharing the video as protected speech. The problem for victims of false light is that it is becoming easier for independent actors to use AI and other means to produce such videotapes. It becomes difficult to then track down the culprits. That can leave a vacuum of accountability.

NBC has a valid objection to this parody even without a lawsuit. The campaign can engage in any number of criticisms against opponents without using this journalist in a faux news clip. It should be taken down.

 

50 thoughts on “NBC Demands Trump Campaign Take Down Parody Video”

  1. Prof Turley is wrong here. NBC and Haake are public figures open to ridicule. They are so full of it that one cannot honestly talk about them without exposing their acts of presstitution. And his case citations are inapt and irrelevant. Dismissed! Next case?

  2. NBC is required to provide services to benefit the public, NBC does not live up to that standard. The network, and its affiliates, are propagandists for the Democrats. The Democrat activists at the network deserve no respect because they behave in a disrespectful manner.

    1. I guess Jonathan Turley has never seen any episodes of Saturday Night Live going back I don’t know— seven years? According to the good law professor, Free speech seems to be a one-way street. NBC runs nonstop parodies of Donald Trump but his campaign is prohibited from doing the same to NBC. Is that what constitutional law really says?

  3. The only news anchorman able to tell objective news was Ron Burgundy, aka “Coyote of the Desert”.

  4. Trumpelthinskin no doubt imagines that a tort is something to eat. As the Dongel is wont to say, “A lotta people don’t know that!”

    1. We’ll see if the host of saturday Night live has a thin skin or not over this parody.

      The problem the left has with trump, why it gets embarrassed by him over and over, is 1. their incessant poutrage over crap like this. No one, except the victim industrialists of Grievance, Inc., has any respect for people that cannot take a joke and 2. comments about the distinction between a tort and a tart.

      The left used to make people laugh, they still do but they are now the butt of the jokes, not the deliverers.

  5. Prof Turley, thank you for your thoughtful reporting with analysis.

    I would appreciate your insight on two specific questions.

    Where is the point where the statement of one person, standing on Harvard property, says, “I support genocide of Jews,” becomes like shouting “FIRE” in a crowded theater and loses First Amendment protection?

    Regarding the Supreme Court’s statement in Heller, “Like most rights, the Second Amendment right is not unlimited. . . . [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill,” what is the current status of the law regarding who may be prohibited from possessing firearms?

  6. The claim that Ron DeSantis is a RINO seems insane — what do you have to do to be considered a real Republican these days?

      1. seems the rinos are on the run and need the MAGA arm, now.

        The rinos are largely legacy folks

    4. Unsure of DeSantis Bone fides concerning his conservatism. However, I am better informed about the people financing him, and those people I don’t trust.
      They are the same people that gave us Mitt Romney, and John McCain, and JEB!. Republicans that collapsed and acquiesced to Democrat demands.

  7. Lets take a moment to note that the leading Republican nominee’s campaign is faking news reports. This is very disturbing. Of course the news company will ask for it to be removed. Those who report the news have a responsibility to be accurate (yes I know many fail, looking at your Fox News), and faking their news broadcast is unacceptable. The intention to have this be a parody is not relevant for many MAGAs will believe it.

    1. Did you read the part were the guy said it was a Parody?
      The fact you cannot understand it is a parody is disturbing.
      The again, comedians like Bill Maher make parodies all the time and just might be right at the same time.

      1. @Upstate Farmer,

        Turley is pointing this out that while it is clearly a parody, that there may be some aspects of tort law if this was done by Trump’s campaign.

        The reality is that while NBC is pissed, I have to wonder about all of those SNL skits that are also parodies.

        I mean imagine if someone were to use AI to do a deep fake. Would even having the streamer (This is a parody!) be enough to prevent a lawsuit?

        I mean no offense this is one of the 3 main stream media companies (NBC, CBS, ABC) and frankly some of their news should carry a parody banner yet they claim it to be real news.

        -G

      2. “The again, comedians like Bill Maher make parodies all the time “

        Upstate, I believe the difference is that the video uses NBC’s work-product.

          1. G, the question is, does the video violate the fair use doctrine. Turley says the tort is “false light”. Is that part of the fair use doctrine?

            1. @S. Meyer
              Uhm… no.

              A quick look at the definition of ‘false light’:
              False light is one of several torts under the category of invasion of privacy where a defendant is accused of spreading falsehoods about a plaintiff that would be considered objectionable by the average person.
              -=-

              So its not a question of fair use.
              Suppose I took a portion of a Trump stump speech.
              And I then make something that is clearly a parody and I use that clip in the parody.

              Trump would sue obviously under a false light tort.
              While it could be objectionable, being a parody… would give me cover.

              I’m not sure how the courts would view it.
              Trump? I’d probably win. If I poked fun of Brandon? in DC? I’d end up making the J6 crew look like they did easy time.

              Suppose I took a bunch of video clips of Joe Biden and I stitched them together to show that he’s got dementia.

              Now I would be ok under fair use, but I’d get sued because Doktor Jill would say I committed a tort. (She’s not a doctor)

              Does that help?

              -G

              1. G, you make sense, so I accept your explanation and agree. Thank you.

                I’m troubled by the use of another’s work product. Does that pertain on its own? Essentially, the campaign’s use of the NBC video that included all its fixtures represented cash for the campaign.

  8. The video is repulsive. That it ends with the music of the Village People, a 1970s gay music band, is delicious irony. Well done to the groomer hysterics imbeciles who produced it.

    Dear God, please send some plagues to save us from ourselves

    1. Far more repulsive is the weaponization of the DOJ, the criminal in the White House and a government that is out of control. However, this is one of Trump’s negatives that I, a firm Trump supporter, don’t like. There is too much divisiveness, and it is likely a violation of NBC material. That being said, it doesn’t cause wars, rape the American people, and permit criminals and drug cartels to enter our southern border.

      This is a relatively insignificant negative blip that will disappear while he corrects a lot of the critical problems we face today. Vote for a man who has proven himself in the past, or vote for a perfect man who does everything wrong.

      1. S. Meyer– I agree. Although off topic, I read that more than 500 Harvard faculty members signed a letter in complete support of President Gay even though she was unable to say that speech which calls for the eradication of Israel and its Jewish inhabitants, and even though Harvard’s own Jewish students live in a climate of fear, she does not know whether any of that violates Harvard’s student conduct code against harassment. Not long ago, in response to Riley Gaines speaking against having biological male athletes compete against biological females, the Harvard Crimson editorial board published the following: “By misgendering and mocking trans athletes for the entertainment of the crowd, as well as belittling the charge of transphobia as a “term of endearment,” Gaines displayed a deplorable disrespect for the transgender community that we, as an Editorial Board, must explicitly condemn.” Threatening Jews and supporting terrorists who murder them is OK; failing to adhere to the trans agenda is deplorable. That is Harvard’s moral compass.

        2. Honest, thank you. We get many of our leaders from the Ivy League, so what we are seeing is dangerous. As is often pointed out, when things go sour, they can go bad very fast. We noted that in Germany but didn’t learn the lesson. We must turn Wokeism around, for one generation is enough to destroy.

    2. “Dear God, please send some plagues to save us from ourselves”

      Oh, please don’t.

      Would rather we were all stricken suddenly with wisdom or the Fruits of the Spirit.

  9. I agree the video is in bad taste, but Haake is a celebrity news reader with a demonstrated bias against the former President. That bias puts him in the political arena and in my opinion fair game for parodies.

  10. How many anonymous commentators can we have on this blog. Now one is identifying as a different anonymous to avoid confusion. It makes it hard to follow a discussion if more and more people contribute anonymously. You are similarly anonymous if you use a fake name as most contributors (including myself) so. May I invite the current anonymous users to adopt a distinctive penname?

  11. I’m not sure why Trump should worry since NBC news has been parodying a news site for several decades and we were supposed to ignore that it was a parody and treat it as real. We were supposed to disbelieve our lying eyes and ears. Maybe the Trump ream should offer to remove the parody if NBC offers to retract their whole network.

  12. Please give me a link if anyone knows if Professor Turley has posted on here anywhere about how it would work IF Trump loses the NYS civil trial and all likely (I assume) years long subsequent appeals. It seems unreal that a person could
    (a.) apply for a loan from large multinational banks,
    (b.) maybe or maybe not overstate the value of the collateral (irrelevant since the large multinational banks do their own appraisals), and
    (c.) repay the loans on time and as per agreement
    and still be found at fault. But apparently (b.) is against the law in NYS irrespective of the irrelevancy and irrespective of (a.) and (c.).

    Assuming all that to be correct, and assuming one of the penalties is that The Trump Organization can no longer do business in NYS, how are its properties and businesses unwound. Also apparently TTO could not just pay the $250,000,000 (where does that number come from?) and carry on with its businesses. What’s to stop The Kushner Organization from buying them. Is the reason there has been no commentary by the Professor because the odds against any of this happening are so small?

    I am strongly against going off topic but I cannot find anything about this case even by the Professor and it seems much more interesting legally than whether or not Hunter Biden cheated on his wife with his sister in law and then fathered a child by a prostitute that Joe Biden won’t recognize as a grand child.

    1. @Dennis,

      Trump was found guilty by Engoron with his summary judgement.
      The case is moving forward so that Engoron can determine what penalties to assess.

      And that’s the kicker.
      The summary judgement was enough to warrant an appeal. Trump should win an appeal just on that…
      But after the bankers testified… Trump has even more grounds for an appeal which should be the end of it.

      Turley wrote that the bank doesn’t have to be a victim, or rather, to have lost money for SDNY to sue Trump under the broad language of the law.

      That’s not 100% accurate and I would argue Turley to be mistaken, however he’s the law professor and I’m some faceless guy posting from my mother’s basement. (That was a joke, btw)

      The point is that in their testimony, the bank didn’t rely on Trump’s representation of his estimated wealth. They did their own due diligence.
      They also stated that they provided courtesies to Trump because he was Trump and that he was a ‘whale’ where there would be additional opportunities because they were doing business with him. This alone invalidates the law James is using because the benefits given to Trump had nothing to do with anything he wrote on the loan application.

      This gets into an area that Turley didn’t discuss. (or if he did, I missed it.) It was the intent of the law as written and how it wouldn’t apply to Trump.
      The misapplication of the law is squarely on James.

      BTW the contract in question is the banks.
      They ask for an estimated value which Trump provides.
      In fact one of the ironies is that when it comes to estimating the sq footage of a property is always at risk.
      Unless you’re using a laser to measure the interior walls of each room, you won’t get an accurate number and even then you need to state the amount of error in your measurement. A miss by a foot or a miss by a yard is still a miss.

      -G

      1. You write that Turley discussed part of this somewhere. Can you provide a link or a guess as to when.

        But my question is different? IF TTO loses — even after I assume years of appeals — how do they unwind the TTO

      2. G I know little of NYC real estate practices. I am very experienced in farm ground changing hands. For instance, while the talking price is alway $/acre, the sales contract will proved legal description and surveyors measurement, the sale is always for the parcel “more or less” ?acres. Then there is terms like tillable acres. This is only to illuminate the process is very much buyer beware.
        I would think NYC apartments would have a history of sales supporting the particulars, but the buyer is responsible for validating information.
        Lenders follow their own ever shifting procedures. I had a farmer that bought half of a 160 acres(quarter section) his lender required he used as collateral ALL of his paid for land. They would not accept a large down, using the new purchase as collateral. Years later it was discovered the man sold the parcel and forged his wifes signature. The man was murdered and then the wife discovered they no longer owned Iowa farmland. Courts ruled the purchase was faulty and the grower was forced to give the land, but not the mortgage.

        This is all to illustrate the lender is legally responsible to do their due diligence, to protect the institutions customer deposits.

  13. Well, it’s just “fake news” put out by the Trump campaign. Not much different than the “fake news” peddled daily by NBC. Can you believe anything these days? Hardly. The Lamestream Media has done this to themselves and now they whine . . . just like Democrats, wait . . . they ARE Democrats,

  14. This is obviously a political parody; it is protected by the First Amendment. I am surprised Turley considered it worth writing about.

  16. Creative and Funny. The Left and DEMS always cry foul when it is used against them or a joke about them but it is Fine if they do it.

    1. If you believe what you wrote, there is no hope for you. The left is routinely skewered by many, including by many on the left and it is just fine. The article goes way beyond just making fun of something. It implies something that is not true by using a voice in a way that makes you think something is reality when it is not.

      1. If the left would not be such an easy target for parodies, maybe there would not Bee so many: UPenn President Lights Special ‘Please Don’t Pull That $100 Million Donation’ Menorah
        https://babylonbee.com/news/upenn-president-to-light-special-please-dont-pull-that-100-million-donation-menorah

        They do it to themselves daily. Comedians like Bill Maher, take full advantage of it.
        I was in the truck the other day, listened to NPR. I could of sworn it was a parody of real news. It was that bad.

  18. It’s hard to read this and not think about the plethora of similar hit pieces on Trump by main stream media news outlets and other self proclaimed serious news programs….

  20. As far as I am concerned there is only one voice in the world that could be copy protected.

    James Earl Jones

    I wouldnt recognize this Hack’s voice (misspell intentional). I’d never even heard the name before.

    1. Anonymous, I’m confused, or perhaps you are just omnisciently endowed. You wouldn’t know Haake’s voice if you heard it, but you believe he is a Hack? How do you know he is a hack? At least that is the impression I’m given with your comment

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