The Guardian had a weird story over the weekend claiming that artist Illma Gore is being threatened with a lawsuit
if she sells a painting she created of a naked Donald Trump with, well, a less than average sized schlong (and I use that term, only because Trump apparently likes that word
). I won't post an image of the painting. The Guardian has the whole thing if you really feel like seeing it. But almost nothing in the story makes any sense at all.
The piece by Illma Gore, titled Make America Great Again, depicts Trump with a small penis. It went viral in February after the artist published it on her Facebook page and has since been censored on social media sites and delisted from eBay after the anonymous filing of a Digital Millennium Copyright Act notice threatening to sue Gore.
Except, you can't file an anonymous DMCA notice. A key part of the DMCA notice process is that you need to identify the copyrighted work that was infringed, and the notice itself needs to be signed by someone acting on behalf of the copyright owner. In other words, there's no such thing as an anonymous DMCA notice -- not a valid one anyway.
Second, there's no copyright issue here at all, most likely. Lots of people jumped to the conclusion that it was Trump or his lawyers who sent the notice. That may well be, as he has a history of being ridiculously litigious over the slightest of insults, but he has no copyright interest in what he looks like. The only way there's a copyright claim here is if another artist painted the same thing first or, perhaps, if the painting was based on a photograph of Trump and the photographer was suing. But if it was just a regular clothed picture of Trump, I'd think that this would pretty obviously be transformative fair use from that photograph.
If it was Trump, he'd have no copyright interest at all. Potentially, his lawyers could, I guess, argue a publicity rights claims, which vary based on different state laws, but that would almost certainly fail as well. And the DMCA has nothing to do with publicity rights.
It's possible that it was just a Trump supporter sending a bogus DMCA to get eBay to take down the image. After all, the article also notes:
... galleries in the US refused to host the piece due to security concerns following threats of violence from Trump’s supporters....
The LA-based artist has received thousands of death threats and travelled to the UK to escape the frenzy....
But if that's the case, eBay (which has lawyers who should know this stuff) should have easily rejected the DMCA notice as invalid.
Perhaps eBay pulled the image for other reasons, and it's just being reported as an "anonymous DMCA notice" because people (and reporters) don't even recognize that the DMCA refers to a specific thing with specific rules. But, in the end, very little about the story makes any sense at all.