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NYLJ “Court Reviews Fair Use Protection for Publishers Embedding Social Media Posts”

By Steve Kramarsky & Jack Millson

The early internet was created to facilitate the robust sharing of information among the research institutions and military facilities that were its first nodes. As the network grew, it retained that character and became the foundation for new ways to access and share information—including what we now know as the Web and various social media services. Almost all these services were designed around an ethos of making content as widely and easily accessible as possible, and in the social media world, an entire sharing economy arose, with its own “currency”—engagement (itself based on sharing and reposting).

Perhaps predictably, as these services have grown in scope and became more integral to everyday life, their character has transformed as well. While social media is still used to keep up with friends and family or explore personal interests, it has also become a primary source of news, commercial announcements, brand-building, and advertising for companies and individual “influencers” alike.

That change in character, from purely social communication to a mixture of the social and commercial, has had knock-on effects for courts applying traditional legal principles. Notably, the application of the Copyright Law has had to evolve in recent years to reflect the changes in the way social media is used. The increase in commercial use has caused some courts, including those in New York, to recognize a need to protect content owners even as the services themselves encourage sharing. On the one hand, the social media ecosystem generates a great deal of “newsworthy” content which, as discussed below, is a factor in determining whether use is permissible. On the other, the fact that content creators may retain an expected commercial interest in their posts may trigger enhanced Copyright protection. A recent case in the Southern District of New York analyzed those issues under the “fair use” doctrine. Whiddon v. Buzzfeed, 2022 WL 1655584 (S.D.N.Y. Oct. 31, 2022).

This article first appeared in the New York Law Journal on January 13, 2023. Stephen M. Kramarsky, a member of Dewey Pegno & Kramarsky, focuses on complex commercial and intellectual property litigation. Jack Millson is an associate at the firm.


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