Within the past decade, the Internet has played an increasingly central role in social dialogue and popular culture. Through the promulgation of “like” and “heart” features on online platforms such as Facebook and Instagram, individuals are encouraged to affirmatively engage with content posted by other users to share and debate their opinions in a public forum. Consequently, many consumers assume that content posted on the Internet is inherently free for the taking. This perceived free culture, however, materially conflicts with content creators’ interests in maintaining control over the reproduction and distribution of their works. Not surprisingly, a direct result of the increased popularity and relevance of social media websites has been an uptick in copyright infringement lawsuits brought by professional content creators against the downstream users of their copyrighted content. In response to such copyright infringement suits, several downstream users have asserted the fair use affirmative defense under § 107 of the Copyright Act.
In the face of this changing social media landscape, this Comment proposes that when analyzing the first factor of a fair use affirmative defense in a copyright infringement action, courts should broaden the conceptualization of transformative purpose in the digital environment. Specifically, courts should recognize social commentary as a presumptively transformative purpose. Additionally, this Comment proposes that courts should consider attribution when assessing market harm to the copyright owner, the fourth factor considered by courts in a fair use analysis. By including attribution as a factor weighing in favor of fair use, secondary users will be incentivized to follow best practices on the Internet. Furthermore, copyright holders will be better able to mitigate the financial exploitation of their works on social media, while simultaneously allowing the general public (who most often share content for noncommercial purposes) to engage in social dialogue on the web.