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Twitter Took a Trump Tweet Down, but Should It Have? And Is Nickelback to Blame?

October 3, 2019, 5:25 PM UTC

Twitter has a policy of not interfering with President Trump’s tweets but, in in the early hours of Thursday, the company made an exception: It removed a video the president had tweeted to attack his Democratic rival, former Vice President Joe Biden.

The tweet simply said “LOOK AT THIS PHOTOGRAPH,” invoking a meme based on the much-maligned band Nickelback. Typically the meme involves an image of the band’s lead singer Chad Kroeger holding up a photo frame, saying “look at this photograph,” and Internet users replacing the people in the picture with other images. In Trump’s version of the meme, the framed photograph featured Biden and his son alongside with Ukrainian gas executives.

In an email to Fortune, Twitter says it removed President Trump’s tweet in response to a “valid copyright claim.” Twitter did not elaborate on whether the claim came from Nickelback, its record label Warner Music—who are the likely copyright holders—or someone else entirely.

The incident is remarkable—and not only because it involves the leader of the free world tweeting an image of Nickelback’s lead singer. Twitter has only removed one previous tweet by President Trump, and that too was for violation of a copyright. But this episode even more unusual because Nickelback and its label likely lacked a legal justification to remove the video.

Under copyright law, artists cannot forbid others from using their work in the case of fair use—a doctrine that typically, includes transformative activities like parody, reporting, or commentary. Many scholars regard memes as fair use, and one prominent copyright professor, Pamela Samuelson of UC Berkeley, raised the question in regard to the Trump tweet:

Other copyright lawyers agreed with Sameulson.

“I call fair use. It was used for a different purpose than the original, and they edited and modified the original video,” said attorney Lloyd Jassin.

According to John Bergmayer, a lawyer with Public Knowledge, companies like Twitter will typically heed a copyright complaint, even if the material in question appears to be fair use.

“The way the law is structured, leaving something up is mostly downside, and intervening in specific cases is also mostly downside,” said Bergmayer, who added that President Trump can file a counter-notice to restore the tweet, but that the process takes 10 days—an eternity in Twitter time.

Twitter declined to address Fortune’s inquiry about whether the tweet should stay up on fair use grounds. The upshot is that the company, which has invoked a variety of loopholes to keep up tweets by Trump that appear to violate its policies, has decided to remove a tweet for questionable copyright reasons.

The White House, which did not reply to a request for comment about whether it would challenge the takedown, responded to the Twitter removal by posting the video on its YouTube channel. The YouTube video has also since been removed on copyright grounds. YouTube did not immediately respond to Fortune’s request for comment.

Nickelback and its label did not immediately respond to a request for comment.

Trump’s Nickelback meme tweet appears to be the second time a presidential posting has been taken down by Twitter. The previous tweet also involved a copyright complaint, namely one in which Trump used music from the film The Dark Knight Rises without permission.

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