Fair Use, Copyright, and Social Media

This post is excerpted from the upcoming e-treatise “Wassom on Social Media Law.”

Copyright exists in order “to promote the Progress of Science and useful Arts.” It accomplishes this by giving authors an economic incentive to create new works and share them with the public.  But private control over the use of expressive works doesn’t always promote progress; indeed, giving copyright owners too much control over the works they’ve created not only impedes societal progress, but also creates tension with the fundamental principles of free speech and the exchange of ideas that underlies the First Amendment and our entire democratic system.

For these reasons, the Copyright Act includes the “fair use” doctrine.  The fair use defense acts as a safety valve that allows certain socially beneficial uses of copyrighted works to escape the control of their owners.

Identifying the purpose of fair use is easy; figuring out whether any particular use of a certain work is fair is another story entirely.  The Copyright Act doesn’t define what is fair, but rather provides courts with guidelines to apply on a case-by-case basis.  For this reason, it is never safe for anyone to assume that what they’re doing definitely is a fair use.

The fair use defense favors such motivations as “as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”   It also provides four factors to guide the court’s analysis:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Only a handful of court decisions have applied this analysis to social media.  In one of the earliest such cases, Sedgwick  Claims Management Services, Inc. v. Delsman, a court decided that a blogger had made a fair use of two insurance company executives’ portrait photos by incorporating them into “Wanted” posters to illustrate his blog posts criticizing the company.  The blogger transformed the “purpose and character” of the promotional photos by using them to criticize the company.  “Allowing Defendant to use the photographs in the context of publicly criticizing and warning the public regarding Sedgwick’s business practices,” the court wrote, “is precisely the type of activity the fair use doctrine is intended to protect.”
2011 case found it fair use to forward a one-sentence inquiry that the plaintiff had posted on a listserv.  Plaintiff’s post implied that a certain CPA firm was overcharging him.  Those who copied the message did so not to seek that specific information, but rather to inform the CPA firm of the complaint. This is a trivial act of “reproduction” and “distribution,” and the court thought so too; it also held that the one-sentence post wasn’t sufficient original to be copyrightable in the first place.  But in light of how many millions of times per day that short tweets and status updates are shared through social media, this type of analysis becomes extremely important.
One of the most celebrated cases involving fair use and social media is the long-running saga of Lenz v. Universal Music.  At the center of this case is a short video that a mom posted to YouTube of her toddler dancing to Prince’s “Let’s Go Crazy.”  When Universal asked  YouTube to take the video down, Lenz fought back, eventually getting pro bono support from the Electronic Frontier Foundation.  And, in many respects, she won, including in a 2010 decision that exposed Universal to potential liability for failing to consider whether Lenz’s video was a fair use before sending its takedown request.
Other fair use battles have been fought–and won–entirely in the court of public opinion.  In 2009, the blog Boing Boing published a Ralph Lauren modeling photo that had been so heavily manipulated as to make the model so impossibly skinny that her head appeared wider than her waist.  The image became a lightning rod for criticism of the fashion industry.  Ralph Lauren reacted by calling the image an infringement and demanding that it be taken down.  Boing Boing publicly refused, claiming the protection of fair use.  Eventually, Ralph Lauren demurred, issuing a press release admitting that “we are responsible for the poor imaging and retouching that resulted in a very distorted image of a woman’s body. We have addressed the problem and going forward will take every precaution to ensure that the caliber of our artwork represents our brand appropriately.”