David Kittos, the photographer, was himself was a refugee who escaped from Turkish occupation in Cyprus fleeing to the UK. He filed a DMCA “take down” to Twitter, which ended Trump’s use of the image, but obviously not its re-use by thousands of others discussing it, creating substantial indirect infringement.

The claim is against the Trump campaign, its two principals: Messrs. Trump and Pence, and Trump Jr. who arguably acted on their behalf.

There are several interesting edges to consider.

First, Presidential campaigns are temporary businesses which become empty shell corporations after their assets are either expended or donated to others. So, claiming that people should be held liable makes sense, as any ruling will come well after November 8th and the functional life of the campaign.

Holding Donald Sr. and Pence liable for the operation of their own campaign shouldn’t be a stretch. Though neither participated directly in an act of infringement, it seems likely that staff assisted Trump Jr. in preparing the image, and that he may have coordinated his Tweet with the campaign. While the candidates didn’t have a right to control Trump Jr.’s Twitter account– any act of coordination from Trump Jr, or compensation to him would solidify his status as acting as an agent on behalf of the campaign.

Second, what about merit? Is a photo of a bowl of Skittles sufficiently creative to gain protection? This isn’t a high bar. Kittos says he optimized the lighting, angle, and placement of the candies so “their bright and boastful colors are the center piece of the image”. As the Kittos earns at least part of his living from photography, his claim of protection for his work seems routine too. While he had not demonstrated a commercial intent by marketing the photo, it was posted with a statement reserving all rights in the image, so there is some argument that he acted affirmatively to maintain the photo as a commercial asset.