#copyright – Social Media Legality

I Knew I Smelled a Rat! How Derivative Works on Social Media can “Cook Up” Infringement Lawsuits

If you have spent more than 60 seconds scrolling on social media, you have undoubtably been exposed to short clips or “reels” that often reference different pop culture elements that may be protected intellectual property. While seemingly harmless, it is possible that the clips you see on various platforms are infringing on another’s copyrighted work. Oh Rats!

What Does Copyright Law Tell Us?

Copyright protection, which is codified in 17 U.S.C. §102, extends to “original works of authorship fixed in any tangible medium of expression”. It refers to your right, as the original creator, to make copies of, control, and reproduce your own original content. This applies to any created work that is reduced to a tangible medium. Some examples of copyrightable material include, but are not limited to, literary works, musical works, dramatic works, motion pictures, and sound recordings.

Additionally, one of the rights associated with a copyright holder is the right to make derivative works from your original work. Codified in 17 U.S.C. §101, a derivative work is “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a ‘derivative work’.” This means that the copyright owner of the original work also reserves the right to make derivative works. Therefore, the owner of the copyright to the original work may bring a lawsuit against someone who creates a derivative work without permission.

Derivative Works: A Recipe for Disaster!

The issue of regulating derivative works has only intensified with the growth of cyberspace and “fandoms”. A fandom is a community or subculture of fans that’s built itself up around one specific piece of pop culture and who share a mutual bond over their enthusiasm for the source material. Fandoms can also be composed of fans that actively participate and engage with the source material through creative works, which is made easier by social media. Historically, fan works have been deemed legal under the fair use doctrine, which states that some copyrighted material can be used without legal permission for the purposes of scholarship, education, parody, or news reporting, so long as the copyrighted work is only being used to the extent necessary. Fair use can also apply to a derivative work that significantly transforms the original copyrighted work, adding a new expression, meaning, or message to the original work. So, that means that “anyone can cook”, right? …Well, not exactly! The new, derivative work cannot have an economic impact on the original copyright holder. I.e., profits cannot be “diverted to the person making the derivative work”, when the revenue could or should have gone to original copyright holder.

With the increased use of “sharing” platforms, such as TikTok, Instagram, or YouTube, it has become increasingly easier to share or distribute intellectual property via monetized accounts. Specifically, due to the large amount of content that is being consumed daily on TikTok, its users are incentivized with the ability to go “viral” instantaneity, if not overnight, as well the ability to earn money through the platform’s “Creator Fund.” The Creator Fund is paid for by the TikTok ads program, and it allows creators to get paid based on the amount of views they receive. This creates a problem because now that users are getting paid for their posts, the line is blurred between what is fair use and what is a violation of copyright law. The Copyright Act fails to address the monetization of social media accounts and how that fits neatly into a fair use analysis.

Ratatouille the Musical: Anyone Can Cook?

Back in 2020, TikTok users Blake Rouse and Emily Jacobson were the first of many to release songs based on Disney-Pixar’s 2007 film, Ratatouille. What started out as a fun trend for users to participate in, turned into a full-fledged viral project and eventual tangible creation. Big name Broadway stars including André De Shields, Wayne Brady, Adam Lambert, Mary Testa, Kevin Chamberlin, Priscilla Lopez, and Tituss Burgess all participated in the trend, and on December 9, 2020, it was announced that Ratatouille was coming to Broadway via a virtual benefit concert.

Premiered as a one-night livestream event in January 1 2021, all profits generated from the event were donated to the Entertainment Community Fund (formerly the Actors Fund), which is a non-profit organization that supports performers and workers in the arts and entertainment industry. It initially streamed in over 138 countries and raised over $1.5 million for the charity. Due to its success, an encore production was streamed on TikTok 10 days later, which raised an additional $500,000 for the fund (totaling $2 million). While this is unarguably a derivative work, the question of fair use was not addressed here because Disney lawyers were smart enough not to sue. In fact, they embraced the Ratatouille musical by releasing a statement to the Verge magazine:

“Although we do not have development plans for the title, we love when our fans engage with Disney stories. We applaud and thank all of the online theatre makers for helping to benefit The Actors Fund in this unprecedented time of need.”

Normally, Disney is EXTREMELY strict and protective over their intellectual property. However, this small change of heart has now opened a door for other TikTok creators and fandom members to create unauthorized derivative works based on others’ copyrighted material.

Too Many Cooks in the Kitchen!

Take the “Unofficial Bridgerton Musical”, for example. In July of 2022, Netflix sued content creators Abigail Barlow and Emily Bear for their unauthorized use of Netflix’s original series, Bridgerton. The Bridgerton Series on Netflix is based on the Bridgerton book series by Julia Quinn. Back in 2020, Barlow and Bear began writing and uploading songs based on the Bridgerton series to TikTok for fun. Needless to say, the videos went viral, thus prompting Barlow and Bear to release an entire musical soundtrack based on Bridgerton. They even went so far as to win the 2022 Grammy Award for Best Musical Album.

On July 26, Barlow and Bear staged a sold-out performance with tickets ranging from $29-$149 at the New York Kennedy Center, and also incorporated merchandise for sale that included the “Bridgerton” trademark. Netflix then sued, demanding an end to these for-profit performances. Interestingly enough, Netflix was allegedly initially on board with Barlow and Bear’s project. However, although Barlow and Bear’s conduct began on social media, the complaint alleges they “stretched fanfiction way past its breaking point”. According to the complaint, Netflix “offered Barlow & Bear a license that would allow them to proceed with their scheduled live performances at the Kennedy Center and Royal Albert Hall, continue distributing their album, and perform their Bridgerton-inspired songs live as part of larger programs going forward,” which Barlow and Bear refused. Netflix also alleged that the musical interfered with its own derivative work, the “Bridgerton Experience,” an in-person pop-up event that has been offered in several cities.

Unlike the Ratatouille: The Musical, which was created to raise money for a non-profit organization that benefited actors during the COVID-19 pandemic, the Unofficial Bridgerton Musical helped line the pockets of its creators, Barlow and Bear, in an effort to build an international brand for themselves. Netflix ended up privately settling the lawsuit in September of 2022.

Has the Aftermath Left a Bad Taste in IP Holder’s Mouths?

The stage has been set, and courts have yet to determine exactly how fan-made derivative works play out in a fair use analysis. New technologies only exacerbate this issue with the monetization of social media accounts and “viral” trends. At a certain point, no matter how much you want to root for the “little guy”, you have to admit when they’ve gone too far. Average “fan art” does not go so far as to derive significant profits off the original work and it is very rare that a large company will take legal action against a small content creator unless the infringement is so blatant and explicit, there is no other choice. IP law exists to protect and enforce the rights of the creators and owners that have worked hard to secure their rights. Allowing content creators to infringe in the name of “fair use” poses a dangerous threat to intellectual property law and those it serves to protect.

Update Required: An Analysis of the Conflict Between Copyright Holders and Social Media Users

Opening

For anyone who is chronically online as yours truly, in one way or another we have seen our favorite social media influencers, artists, commentators, and content creators complain about their problems with the current US Intellectual Property (IP) system. Be it that their posts are deleted without explanation or portions of their video files are muted, the combination of factors leading to copyright issues on social media is endless. This, in turn, has a markedly negative impact on free and fair expression on the internet, especially within the context of our contemporary online culture. For better or worse, interaction in society today is intertwined with the services of social media sites. Conflict arises when the interests of copyright holders clash with this reality. They are empowered by byzantine and unrealistic laws that hamper our ability to exist as freely as we do in real life. While they do have legitimate and fundamental rights that need to be protected, such rights must be balanced out with desperately needed reform. People’s interaction with society and culture must not be hampered, for that is one of the many foundations of a healthy and thriving society. To understand this, I venture to analyze the current legal infrastructure we find ourselves in.

Current Relevant Law

The current controlling laws for copyright issues on social media are the Copyright Act of 1976 and the Digital Millennium Copyright Act (DMCA). The DMCA is most relevant to our analysis; it gives copyright holders relatively unrestrained power to demand removal of their property from the internet and to punish those using illegal methods to get ahold of their property. This broad law, of course, impacted social media sites. Title II of the law added 17 U.S. Code § 512 to the Copyright Act of 1976, creating several safe harbor provisions for online service providers (OSP), such as social media sites, when hosting content posted by third parties. The most relevant of these safe harbors to this issue is 17 U.S. Code § 512(c), which states that an OSP cannot be liable for monetary damages if it meets several requirements and provides a copyright holder a quick and easy way to claim their property. The mechanism, known as a “notice and takedown” procedure, varies by social media service and is outlined in their terms and conditions of service (YouTube, Twitter, Instagram, TikTok, Facebook/Meta). Regardless, they all have a complaint form or application that follows the rules of the DMCA and usually will rapidly strike objectionable social media posts by users. 17 U.S. Code § 512(g) does provide the user some leeway with an appeal process and § 512(f) imposes liability to those who send unjustifiable takedowns. Nevertheless, a perfect balance of rights is not achieved.

The doctrine of fair use, codified as 17 U.S. Code § 107 via the Copyright Act of 1976, also plays a massive role here. It established a legal pathway for the use of copyrighted material for “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” without having to acquire right to said IP from the owner. This legal safety valve has been a blessing for social media users, especially with recent victories like Hosseinzadeh v. Klein, which protected reaction content from DMCA takedowns. Cases like Lenz v. Universal Music Corp further established that fair use must be considered by copyright holders when preparing for takedowns. Nevertheless, failure to consider said rights by true copyright holders still happens, as sites are quick to react to DMCA complaints. Furthermore, the flawed reporting systems of social media sites lead to abuse by unscrupulous actors faking true ownership. On top of that, such legal actions can be psychologically and financially intimidating, especially when facing off with a major IP holder, adding to the unbalanced power dynamic between the holder and the poster.

The Telecommunications Act of 1996, which focuses primarily on cellular and landline carriers, is also particularly relevant to social media companies in this conflict. At the time of its passing, the internet was still in its infancy. Thus, it does not incorporate an understanding of the current cultural paradigm we find ourselves in. Specifically, the contentious Section 230 of the Communication Decency Act (Title V of the 1996 Act) works against social media companies in this instance, incorporating a broad and draconian rule on copyright infringement. 47 U.S. Code § 230(e)(2) states in no uncertain terms that “nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.” This has been interpreted and restated in Perfect 10, Inc. v. CCBill LLC to mean that such companies are liable for user copyright infringement. This gap in the protective armor of Section 230 is a great concern to such companies, therefore they react strongly to such issues.

What is To Be Done?

Arguably, fixing the issues around copyright on social media is far beyond the capacity of current legal mechanisms. With ostensibly billions of posts each day on various sites, regulation by copyright holders and sites is far beyond reason. It will take serious reform in the socio-cultural, technological, and legal arenas before a true balance of liberty and justice can be established. Perhaps we can start with an understanding by copyright holders not to overreact when their property is posted online. Popularity is key to success in business, so shouldn’t you value the free marketing that comes with your copyrighted property getting shared honestly within the cultural sphere of social media? Social media sites can also expand their DMCA case management teams or create tools for users to accredit and even share revenue with, if they are an influencer or content creator, the copyright holder. Finally, congressional action is desperately needed as we have entered a new era that requires new laws. That being said, achieving a balance between the free exchange of ideas and creations and the rights of copyright holders must be the cornerstone of the government’s approach to socio-cultural expression on social media. That is the only way we can progress as an ever more online society.

Image: Freepik.com

https://www.freepik.com/free-vector/flat-design-intellectual-property-concept-with-woman-laptop_10491685.htm#query=intellectual%20property&position=2&from_view=keyword”>Image by pikisuperstar

DANCE DANCE LITIGATION

When the tune of the “Y.M.C.A.,” by The Village People starts to play, no matter the time or place, the urge to raise your arms and dance is impossible to ignore. A wave of nostalgia and childish-like happiness quickly fills the atmosphere, and as the chorus begins, you and (almost) everyone around you begin to dance the only way you know how: throwing your arms up in the air and forming the letters, duh! But what’s not so obvious is that the “Y.M.C.A.” dance, irrespective of its wild popularity and incorporation into major television and film productions since its release in 1978, is not copyrighted. The songwriters, artists, and producers each have and continue to receive the recognition, compensation, and title they deserve for their contributions to the song itself, but the inherent choreography remains unprotected. According to the Copyright Office (“the Office”), a dance “whereby a group of people spell out letters with their arms” is simply too basic to deserve copyright recognition because no matter how distinctive it may be, it is nonetheless a commonplace movement or gesture.

CONGRESS ‘GETS DOWN’

Choreographers, since the beginning of the entertainment industry, have never received the legal protections that producers, songwriters, and artists have. Although The Copyright Act of 1976 (the “Act”) officially recognizes choreography as a protected form of creative expression, in order to qualify as copyrightable, the choreographic work must conform to the following elements: (1) it is an original work of authorship, (2) it is an expression as opposed to an idea, and (3) it is “fixed in any tangible medium of expression. In addition, the Supreme Court has held that an individual may not bring a copyright infringement suit under the Act until the individual has registered with the Office. Although choreographic works were finally recognized as worthy or deserving of copyright recognition and status, the application of copyright laws to choreography since its recognition has revealed a significant grey area for intellectual property law.

BUT IS IT JUST A SHIMMY OR A ‘CHOREOGRAPHIC WORK’?

When assessing what qualifies as a copyrightable choreographic work, the Office acknowledges that the dividing line between what is a simple routine and what is copyrightable choreography is more of a continuum, rather than a bright line. The Office also indicated certain types of works that, from the outright, may not be copyrighted: common place movements, individual dance moves or gestures, social dances, ordinary and athletic movements, and short dance routines.

Whether a particular dance qualifies as a choreographic work, or not, ultimately rests on the Office’s assessment of the following elements collectively:

(1) rhythmic movement in a defined space

(2) compositional arrangement

(3) musical or textual accompaniment

(4) dramatic content

(5) presentation before an audience

(6) execution by skilled performers

DANCING OUR WAY TO THE COURT HOUSE

Litigation surrounding the video game Fortnite, released through Epic Games Inc., reveals just how large that grey area has grown to be. Although free to play, Fortnite’s revenue is derived from in-game purchases including purchasing a dance emote or a dance routine for the player’s avatar.

In 2019, Alfonso Ribeiro, who played the character ‘Carlton Banks’ on the TV show The Fresh Prince of Bel-Air, sought justice for Epic Games’ improper use of the Carlton as a dance emote in Fortnite but was both dismissed and rejected by the court and the Office. Following the direction of the Supreme Court, the court dismissed Mr. Ribeiro’s claim for failing to register and receive final registration of his claim with the Copyright Office. Registration is deemed to be “made” only when “the Register has registered a copyright after examining a properly filed application.” In an attempt to salvage his claim, Mr. Ribeiro proceeded to the Office but nonetheless left emptied handed. In reviewing the application, the Office refused to grant Mr. Ribeiro a copyright because the Carlton did not rise to the level of choreography since it was a simple routine made up of just three dance steps. Likewise, cases brought by rapper 2 Milly and the Backpack Kid against Epic Games alleging copyright infringement for their choreographic works the “Milly Rock,” and “the Floss” as an emote in Fortnite were also dismissed for failure to register with the Office.

So, since the cases were all dismissed for not having a valid registration with the Office, then having a valid registration with the Office is the golden ticket to defending your claim of improper infringement, right? Not quite.

Earlier this year in March, professional dance choreographer Kyle Hanagami (“Hanagami”) filed suit against Epic Games for using dance movements from the copyrighted routine used for the song “How Long” from Charlie Puth. Hanagami, unlike his predecessors above, secured a copyright for his choreographic work. Holding that golden ticket, Hanagami argued that Epic Games did not credit or seek his consent to use, display, reproduce, sell or create derivative work based on his registered choreography.

Regardless of the fact that Hanagami did secure his copyright before bringing a claim under the Act, the court yet again dismissed the case and agreed with Epic Games. The court stated that Hanagami’s steps are potentially protected only when combined with the other elements that make up his copyrighted work. Epic Games technically didn’t infringe on Hanagami’s copyright because the specific dance steps on their own were not entitled to copyright protection. When the works were evaluated as a whole, the court decided they were not substantially similar: “[w]hereas Hanagami’s video features human performers in a dance studio in the physical world performing for a YouTube audience, Epic Games’ work features animated characters performing for an in-game audience in a virtual world.”

And as if the grey couldn’t get any grey-er….it indeed does.

DANCING IN CIRCLES, YET AGAIN

The outcome of all this dance-litigation eludes to the central need for choreography, on its own, to be recognized and protected as a separate work. Although securing a copyright to a choreographic work will get you in the door to the courthouse, there’s no guarantee that what you’ve copyrighted will actually be protected. Thus, it is crucial that the plight of choreographers be truly recognized. Inconsistent outcomes and unclear guidelines continue to aggravate the underlying issue of allowing choreographers to pursue the copyright protection they deserve for their works. Copyrighting successful dance routines is to further help ensure dancers’ and their ability to monetize and profit from their work, but the murky waters that prevent registration and the unpredictability of outcomes in court will remain as barriers until we can clear the grey area.

Tag: #copyright