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NYLJ “IP in the Twitter-Sphere”

EDNY Considers Whether Embedded Images Protected by Fair Use Doctrine

By Steve Kramarsky

In today’s environment, the line between “social media” and “news media” (to the extent it ever existed) is becoming increasingly blurred. A 2019 Pew Research study indicated that more than half of Americans get their news in whole or in part from social media, including Facebook, Twitter, and Reddit. More than one in five Americans, according to that survey, rely primarily on social media for their news. Platforms and algorithms originally designed to connect people and share personal stories have thus moved closer and closer to the center of the news ecosystem, due in part to their ability to spread news quickly and target user interests in a way that traditional news sources cannot. From the most profound announcements to the most mundane, the contemporary expectation is that it will be “heard first” on Twitter or a similar social platform.

That shifting landscape has provided a challenge for courts asked to apply traditional intellectual property standards to new media. Are social media platforms a place for friends to stay updated on each other’s lives? A place for businesses to advertise products? A place for Presidential proclamations and up-to-the-second reporting on society’s most important issues? The answer is: It depends. And the extremely flexible character of social media has required equal flexibility in the courts’ intellectual property analysis. Happily, under U.S. copyright law, that kind of flexibility is possible.

This article first appeared in the New York Law Journal on November 16, 2020. Stephen M. Kramarsky, a member of Dewey Pegno & Kramarsky, focuses on complex commercial and intellectual property litigation. Jack Millson, an associate at the firm, provided substantial assistance with the preparation of this article.


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