Let’s Talk About Hunter Biden’s Wiener And Why the Biden’s Need an IP Lawyer

Introduction

Hunter Biden’s laptop has been the subject of controversy for almost 5 years now. If you haven’t heard about Hunter Biden’s laptop, please stop reading this article and continue living your life. You are winning. 

For everyone else, here’s a recap. Hunter Biden allegedly left a computer with a water damaged hard drive at Mac Issac’s Delaware computer repair shop in April 2019. Biden never returned to claim the laptop. As a result, Isaac took possession of the laptop under a repair authorization form that deems equipment abandoned if it remains at the shop for more than 90 days after service is complete. Isaac gave the laptop to Rudy Gulliani (as one would do…). Hilarity ensued.          

This short story is rife with legal issues many of which have been discussed elsewhere. What seems to have been overlooked are Biden’s intellectual property rights in the data on the laptop, in particular, images that have found their way to various news outlets and the floor of congress colloquially referred to as “dick pics.”   

Here, we argue that these images are subject to copyright protections. As the images author Hunter Biden has the exclusive right to publicly display and disseminate these images. Their dissemination by certain “news” organizations and a particularly inept congresswoman infringe this right. Further, the unauthorized transfer of these images by Mac Isaac to Rudy Giuliani constitutes conversion, making them civilly liable for the value of these images, and likely, punitive damages for the ensuing “hilarity.”  

Copyright Protection of the Images

The images on Hunter Biden’s laptop are unambiguously the subject matter of a copyright. 

Under the United States Copyright Act, copyright protection is automatically conferred upon the creation of an original work fixed in a tangible medium of expression. 17 U.S.C. § 102(a). Assuming these images were created by him or with his authorization (given their subject matter, this is a strong presumption), Biden’s “dick pics” are an original work fixed in a digital medium. Accordingly, the images qualify for copyright protection under U.S. copyright law. 

“The easiest way to cheapen your IP rights is to make them less apparent to the holder of these rights. ”

As copyright materials, Hunter has the exclusive right to reproduce, distribute, display, and create derivative works from the images. 17 U.S.C. § 106.

Transfer of the Copyright

Among the rights Biden acquired after authoring the images on his laptop is the right to transfer the copyright. U.S. law requires transfer of copyright ownership to be in a writing that is signed by the owner or their authorized agent. 17 U.S. Code § 204. The law explicitly states that a copyright cannot be transferred involuntarily: 

When an individual author’s ownership of a copyright, or of any of the exclusive rights under a copyright, has not previously been transferred voluntarily by that individual author, no action by any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under a copyright, shall be given effect under this title, except as provided under [the Bankruptcy statute].  17 U.S. Code § 204(e).

It is extremely unlikely that a court (or any other reasonable person would) interpret a service agreement that transfers possession of “equipment” to encompass copyrighted materials housed on that equipment. Regardless of who has possession of the laptop, the images contained on the laptop remain the exclusive property of Hunter Biden, giving Biden the exclusive right to decide where, when, and by whom the images are displayed. 

There is little doubt that displayers of these images, including BidenLaptopMedia.com, various news outlets, Twitter/X, Facebook, Marjorie Taylor Greene and any individual who has shared these images are liable for copyright infringement.  

Conversion and Unauthorized Transfer

For whatever reason, the Hunter Biden laptop controversy has been focused on who owns the data on the laptop and invasion of privacy, rather than the rights encompassed by the images themselves and information encoded by that data. Publishing someone else’s personal data is morally reprehensible. Nonetheless, U.S. corporations have made billions exploiting your personal data and muddying the water surrounding these issues to great effect. The easiest way to cheapen your IP rights is to make them less apparent to the holder of these rights.  

This does not matter. The holder of the data has no impact on the owner of the copyright. Since Hunter Biden has exclusive rights in the images the data encodes, who has possession of the data itself is irrelevant. Biden should be registering these images with the Copyright office, obtaining injunctions, and suing displayers for infringement, i.e. using established law to get what he wants rather than arguing about invasion of privacy, with a court system that increasingly refuses to recognize a right to privacy.    

“The images on Hunter Biden’s laptop are protected under copyright law, and public display of these images constitute copyright infringement. ”

Since the Biden camp has chosen to take the long cut, let’s look at who owns the data and whether Isaac and Giuliani are liable for conversion. 

Common law conversion has historically been limited to tangible property. Courts reasoned that it was impossible to steal/convert something with no physical manifestation. Ownership disputes over intangible property were handled as contract disputes or intellectual property issues. Easy access to massive amounts of digital storage and hackers, who can infiltrate this digital storage and extract information have made it necessary to recognize ownership rights in digital form.  

Conversion is a tort that involves the unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner's rights. Restatement (Second) of Torts § 222A. Conversion is generally regulated by state law. The state of Delaware where the potential conversion of Biden’s data (NOT the copyrighted works encoded by the data) initially occurred defines conversion as: “any distinct act of dominion wrongfully exerted over the property of another, in denial of his right, or inconsistent with it.” Drug, Inc. v. Hunt, 168 A. 87, 93 (Del. 1933). 

Our favorite “Dick Pic.”

Delaware courts have tacitly recognized ownership rights in digital data. In Data Management v. Saraga, C.A. No. 05C-05-108 (Del. Super. Ct. Jul. 25, 2007), the Delaware Superior Court allowed Data Management Internationalé, Inc. ("DMI") to pursue claims for conversion when DMI’s landlord, Saraga, “wrongfully gave away, destroyed, and discarded business records and personal property belonging to DMI.” Id. Notably, these conversion claims depended upon whether DMI’s lease was extended giving DMI access to their personal property or their personal property was abandoned because the lease had expired, a disputed fact. Thus, this case does not, specifically, address whether intangible business records stored on a computer are the subject of an “abandoned property” provision, like the provision in Isaac’s repair authorization form, in the lease.       

Other states including New York, Giuliani’s home state and a likely early stop in the meandering chain of custody of Hunter Biden’s laptop, have addressed the issue of ownership to digital records more directly. Shmueli v. Corcoran Grp., 9 Misc.3d 589, (N.Y. Sup. Ct. N.Y. Cnty. 2005) involved a real estate broker, Sarit Schmueli, who maintained computer records for real estate deals she worked on outside of Corcoran on Corcoran devices.  When she was fired from Corcoran she was denied access to these records. 

The New York Supreme Court allowed her cause of action to proceed, stating: 

The question is, does the common-law tort of conversion become an extinct vestige of the past as to documents maintained on a computer, merely because traditional definitions of documents evolve over time to the point where wood pulp is no longer the only required medium upon which to record data? Does not the concept of conversion, i.e., wrongful exclusionary retention of an owner's physical property, apply to an electronic record created by a plaintiff and maintained electronically as much as it does to a paper record so created? The court today holds that it does.  

The court held that there is no distinction between documents written on paper and those in digital form. Shchmueli’s digitized records were, therefore, subject to conversion by Corcoran. 

This holding was extended Thyroff v. Nationwide, 8 N.Y.3d 283, 292-93 (2007). Here, Nationwide terminated Thyroff’s contract and denied him access to digital files containing customer information and personal data that had been automatically uploaded to Nationwide’s central computers through their agency office-automation (AOA) system. The court found that “it generally is not the physical nature of a document that determines its worth, it is the information memorialized in the document that has intrinsic value” and that the “tort of conversion must keep pace with the contemporary realities of widespread computer use,” holding that “the type of data that Nationwide allegedly took possession of — electronic records that were stored on a computer and were indistinguishable from  printed documents — is subject to a claim of conversion in New York.” Id. at 292. 

While these cases discuss data and personal information, there is nothing to suggest that intellectual property rights encompassing Biden’s images are extinguished by abandoning property holding these copyrighted works. Biden, therefore, remains the exclusive holder of the rights to reproduce, distribute, display, and create derivative works from the images. Supra. 

In a dispute over ownership of the data, the facts favor Biden. Isaac concedes that the repair authorization form limits the transfer of “equipment” in court filings in the U.S. District Court for the district of Delaware surrounding Isaac’s defamation suit against Biden. Mac Isaac v. Cable News Network, Inc. et al, No. 1:2023cv00247. Assuming the court finds that equipment and data are different things, Isaac only has a contractual right to the laptop itself and not the data stored on it.  

At least in New York, the groundwork has been set for Biden to argue that he is the rightful owner of the data held on the laptop. By handing the contents of the laptop to Rudy Giuliani without Biden's permission, Isaac exercised control over Biden’s property affecting a conversion. 

Conclusion

The images on Hunter Biden's laptop are protected under copyright law, and public display of these images constitute copyright infringement. 

There is a time and a place for pushing the boundaries of the law. However, if a picture of my nether regions appears on the floor of congress, I’m taking the most direct route to ensuring that it is taken down. If I took the image, I’m enforcing my intellectual property rights in the image. These rights are well established: A legal super highway compared to the meandering trail of invasion of privacy.    

It’s as easy for you to take and share images as it is for others to copy and display your images in places where you don’t want them. Understanding your intellectual property rights in images that you take and respecting other intellectual property rights in their own images is crucial, underscoring the importance of good IP counsel.