•  
  •  
 
Washington Journal of Law, Technology & Arts

Lindsey Vickers

Abstract

The fair use test for exemption for liability from copyright infringement was codified in the 1970s and has not been updated since—despite major technological changes in the interim. While three of the test’s four prongs are still useful when applied to short-form media that now dominates worldwide media consumption, the factor that considers the substantiality of the portion used relative to the total work is obsolete. The current dysfunctionality of this prong in social media settings is not the only reason it should be reassessed by courts and Congress. The prong and its analysis are a bit of a Frankenstein. The courts have directly changed it by introducing considerations for whether the portion taken, though small, was the “heart” of a work. They have indirectly changed it by heavily relying on another factor of fair use, the “transformativeness” of the work, as dispositive for decades. Together, the direct and indirect changes paired with inoperability in the social media context paint a damning picture for the substantiality prong. Furthermore, as applied to many contemporary social media examples, the factor always produces the same result: that the portion borrowed is not substantial. This is in large part attributable to the design of these platforms, which lean into short-form content. Inoperable legal tests deserve reconsideration, and the substantiality prong of fair use is no exception. The judiciary, as the entity that applies and interprets law, has the authority to and should change how substantiality is weighed in social media cases. This change in interpretation will hopefully provide a blueprint for a subsequent meaningful Congressional amendment to the actual fair use test to better represent social media’s presence and influence on how fair use is applied.

This paper begins with a history of fair use and the substantiality prong, in particular, followed by documentation of the prong’s judicial abrogation since fair use’s codification. It then considers whether the substantiality prong is workable contemporarily in light of our changing media environment, and provides social media case studies ranging from musical remixes to snippets from TV series in which the prong would fail by always producing the same result, that the infringing use is fair use, and therefore exempt from liability.

Download

Share

COinS