Fair use, an evolving doctrine and a very popular fallback for those on the Internet, has continued to be “the most troublesome in the whole law of copyright.”[1] Its goal has been to promote freedom of expression in order to achieve copyright’s overall purpose of promoting the progress of knowledge and learning.[2] But in the age of social media, when about 96 percent of young adults between the ages of eighteen and twenty-nine use the Internet, [3] freedom of expression is accomplished through the sharing of content, licensed or not.[4] Social media sites like Facebook, YouTube, and BuzzFeed encourage the sharing of such content and arguably rely on it. This has led to social media sites being sued for copyright infringement. Social media sites like BuzzFeed have used fair use as an affirmative defense but it’s unclear if they have such protection.
Fair Use and Freedom of Expression
Copyright law in the United States was designed to provide a marketable right for the creators and distributors of copyrighted works.[5] It does not recognize moral rights and therefore places marketable rights over those of author’s rights. [6] But, because of the United States’ strong tradition of freedom of speech, copyright tries to balance those marketable rights with the promotion of freedom of expression. Fair use was therefore codified to promote such freedom of expression through the unlicensed use of copyrighted works in certain circumstances.[7] Due to the balancing of marketable rights and freedom of expression, fair use has been an evolving doctrine. However, because technology has allowed for greater human connections and forms of expressions, fair use is evolving at a greater pace than before.
In determining whether fair use applies to the use of a particular work, there are four factors to be considered and they must be weighed together.[8] The first factor is the purpose and character of the use, and whether, and to what extent, the new work is transformative.[9] The second factor is the nature of the copyrighted work and whether the new work is being used in the same way. The third factor is the amount and qualitative value of the original work as compared to the defendant’s justification for the use. The fourth factor is the commercial impact the new work has on the copyrighted work. Although these four factors may not be treated in isolation but weighed together in light of the purpose of copyright, case law suggests that the most dispositive factor is the purpose and character of the use.[10] This includes looking at whether and by how much the use of the copyrighted work was transformative and if the use was commercial. A work is transformative if it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”[11]
Social Media and Copyright Infringement
Social media companies like YouTube have been sued for copyright infringement for the sharing of copyrighted works without the owner’s permission. However, YouTube, and other companies that have a platform for others to post content, have found protection in the safe harbor provision of the Digital Millennium Copyright Act.[12] The safe harbor provision “limits the liability of online service providers for copyright infringement that occurs ‘by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.’”[13]
Companies like YouTube, Tumblr, and Pinterest are considered internet service providers that allow users to upload content. They are protected by the safe harbor provision because such companies presumably do not have actual knowledge that the material is infringing, they are not aware of circumstances from which infringing activity is apparent or upon obtaining such knowledge they act expeditiously to remove the material. The same can be argued for social media sites like Instagram and Facebook. But, sites like BuzzFeed may arguably be different, since they have actual knowledge of the infringement because they themselves post and share the copyrighted works within their articles without permission of the copyright owners.
BuzzFeed
BuzzFeed is a digital media company that delivers news and articles through the use of social media.[14] BuzzFeed, as a digital media company, creates articles with content (such as photographs), publishes the articles on their website, and promotes the articles by sharing through social media. BuzzFeed has been known to use unlicensed works in their articles.[15] It has also been sued for copyright infringement, for instance, in a case where a photographer sued BuzzFeed for $3.6 million for the use of a photograph in their article without the owner’s permission.[16] The case involved using a photograph of a female soccer player heading a ball. BuzzFeed subsequently shared the article throughout social media. The plaintiff, because of the high cost of litigation, appeared pro se.[17] BuzzFeed, when discussing their use of unlicensed works, has claimed that their activity falls under fair use because they believe that they used the work in a transformative way, for example through the sequencing and framing of photographs in an article.[18]
Now, some have argued for an even wider application of the fair use doctrine because of online culture, which promotes sharing content as a way of communicating.[19] But it can be argued that the activity of companies like BuzzFeed are different because they are not users involved in a discussion but, rather, a company making a profit off another person’s work. Cases filed against BuzzFeed are rare, possibly due to the expense of litigation and possibly because the fair use doctrine continues to evolve. This comes down to plaintiffs not wanting to take a chance by taking their case to court for fear of losing. Copyright cases that do go to court usually settle for the same reasons as stated above.[20] The cases that don’t settle have rendered judgments that seem to have expanded the boundaries of fair use. [21] So, although fair use may arguably not apply to BuzzFeed’s use of content, because of their limited arguments regarding transformative use, there is no clear case law that prevents BuzzFeed from claiming fair use through trial, resulting in companies, including BuzzFeed, to continue operating as such.
Conclusion
Although social media sites like YouTube have found protection in the safe harbor provision of the Digital Millennium Copyright Act, social media sites like BuzzFeed, who are themselves taking steps that infringe on others copyright for a profit, generally cannot. Therefore, they depend on the fair use doctrine. Fair use is an evolving doctrine meant to promote freedom of expression but because of online expression and online culture it is unclear how far it has expanded and whether it protects companies like BuzzFeed. But, what is clear is that many copyright infringement cases do not go to court and most of the cases that do go to court are settled. This allows BuzzFeed to continue to claim fair use, whether it truly applies to their activities or not. [22]
[1] Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661, 662 (2d Cir. 1939)(per curiam).
[4] Lauren Levinson, Adapting Fair Use to Reflect Social Media Norms: A Joint Proposal, 64 UCLA L. Rev. 1038, 1048 (2017).
[5] Julie E. Cohen, Copyright in a Global Information Economy 6 (4th ed. 2015).
[6] Moral rights include the “right of an author to be credited as the author of his or her work (the right of attribution) and the right to prevent prejudicial distortions of the work (the right of integrity).” U.S. Copyright Office, Study on the Moral Rights of Attribution and Integrity, Copyright.Gov, https://www.copyright.gov/policy/moralrights/
[7] See U.S. Copyright Office, supra note 2.
[8] 17 U.S.C. § 107 (2012).
[9] See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584 (1994) (The court found that a parody’s commercial character is only one element to be weighed in a fair use enquiry and a sufficient consideration must be given to the nature of the parody in weighing the degree of copying.)
[10] Barton Beebe, An Emperical Study of U.S. Copyright Fair Use Opinions, 1978-2005, 156 U. PA. L. Rev. 549, 556 (2008); Levinson, supra note 4, at 1063.
[11] Campbell, 510 U.S. at 579.
[12] See, e.g., Viacom Int'l, Inc. v. YouTube, Inc., 940 F. Supp. 2d 110, 123 (S.D.N.Y. 2013) (“defendants are protected by the safe-harbor provisions of the Digital Millennium Copyright Act, 17 U.S.C. § 512(c) from all of plaintiffs' copyright infringement claims.”).
[13] Viacom Int'l, Inc. v. YouTube, Inc., 676 F.3d 19, 25 (2d Cir. 2012).
[18] Madrigal, supra note 15.
[19] Levinson, supra note 4 at 1050-51 (“Typically, individuals use social media accounts to join in a conversation with other users regarding the subject matter of the original post. Thus, the Internet is unique because it is a place where freedom of expression proliferates and individuals with different perspectives can share content in order to communicate their beliefs, opinions, and thoughts to a wider audience. .. Consequently, some scholars argue that this characteristic should be considered when analyzing the transformative quality of a secondary user’s sharing behavior.”).
[20] See Stipulation of Dismissal, Eiselien v. Buzzfeed, Inc., No. 13-39010 (S.D.N.Y. Dec. 20, 2013).
[21] See Equals Three, LLC v. Jukin Media, Inc., 139 F.Supp.3d 1094, 1104 (C.D. Cal. 2017) (The court found that reaction videos that create something new should be protected by the fair use doctrine.). See also Alyaman Amin Amer, Reaction Videos and Fair Use, Vol. 15, Snippets, Issue 4, 12 (Fall 2017).
[22] In the past, BuzzFeed has claimed to be moving the site away from a free-for-all approach. Adrian Chen, Remix Everything: BuzzFeed and the Plagiarism Problem, Gawker.com, http://gawker.com/5922038/remix-everything-buzzfeed-and-the-plagiarism-problem.
