Many major sports leagues including the National Football League, Major League Baseball, and Ultimate Fighting Championship have consistently used the Digital Millennium Copyright Act (“DMCA”) to remove user-created GIFs, Vines, and related content that make use of the leagues’ copyrighted broadcast material on Twitter. This Article analyzes Twitter users’ right of fair use in the leagues’ copyrighted material, while suggesting that sports leagues and their agents may not be following the Ninth Circuit’s Lenz v. Universal Music Corp.decision, which requires copyright owners to consider fair use before submitting DMCA takedown notices. Sports leagues’ protocol and actions towards GIFs and Vines on Twitter are the backdrop used to examine Twitter’s conflicted role and inconsistent history in complying with an array of DMCA takedown notices across varied forms and industries. On Twitter, the DMCA has not served to successfully strike a balance between the rights of the copyright holder and user. Instead, the law adversely impacts users making fair use of copyrightable material and makes that use fundamentally impractical on a social media service that exists in and mirrors, the real-time lives of its users. Whether a user posts material that is eventually found to be infringing or not, that material may easily be blocked for a period of time that would make its eventual reinstatement to the service effectively meaningless. Barring a court ruling on the issue of fair use in GIFs, Vines, and similar material, changes should be made to section 512 of the DMCA in order to strike a more equitable balance between copyright owner and fair user. The DMCA must reflect the truth that popular social media platforms, such as Twitter, YouTube, Facebook, and Instagram, are each utilized for distinctive purposes and that the laws that achieve fairness in digital copyright on one service may also serve to suppress free speech and the right of fair use on another.
Andrew T. Warren,
GIF Gaffe: How Big Sports Ignored Lenz and Used the DMCA to Chill Free Speech on Twitter,
27 Fordham Intell. Prop. Media & Ent. L.J. 103
Available at: https://ir.lawnet.fordham.edu/iplj/vol27/iss1/3