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Journal of Intellectual Property Law

Abstract

This Note creates a three-bucket commerciality approach for noncommercial content, advertisements, and monetized content to answer how copyright’s fair use protects social media content. To demonstrate its application, the bucket approach is applied to current discussions surrounding social media including video thumbnails, memes, reaction and commentary videos, music in videos, and news reporting. While there is no definitive answer to fair use, this Note attempts to provide clearer guidance using Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith’s lessons.

With the amount of social media content growing exponentially, copying of original content has become rampant. Though many social media posts may infringe on copyrights, fair use may provide a shield against copyright infringement. Over the past few decades, transformative use has been the go-to answer for deciding whether fair use applies to new works. Recently, the U.S. Supreme Court’s Warhol decision has pushed back against this method: transformative use must be balanced with commercial use when considering the first factor of fair use. Many critics argue that Warhol makes the fair use analysis more convoluted. While true in many traditional copyright cases, Warhol may improve fair use analysis as it applies to social media platforms, as less reliance is placed on the difficult transformative use determination.

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