Fair Use, Copyright, and Social Media

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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.

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.”