Vine, a social media website acquired by Twitter, is a popular technology among millennials. They like it because it lets them create looping six-second videos, which are easy to view and to share quickly and widely, often virally. Vine also is gaining traction with brands for marketing, and that is creating issues for intellectual property owners
Vine has steered away from infringement claims, so far, because of Twitter’s prompt compliance with take-down notices under the Digital Millennium Copyright Act; those take-down requests also have been rarely contested by user-posters.
But is the brevity of Vine’s core product also prophylactic–does it provide a de minimis defense? That notion has come under fire in Britain with a recent court ruling from a judge, who found that “fair dealing” failed to apply to Vine snippets showing key moments of an original cricket broadcast. How might the legal thinking cross the seas and be seen in U.S. courts that share a common law tradition?
How British, U.S. copyright differs
The good news is that compared with our British brethren, American copyright law specifically addresses fair use. But two U.S. Courts of Appeal–in the Sixth and Ninth Circuits–already have split on whether Vine’s terse videos infringe or can claim de minimis or fair-use protections.
To be clear, courts have looked at snippets taken from copyrighted works and found infringement, as amount and substantiality are key fair use tests. Courts famously found infringement [Harper & Row v Nation Enterprises, 471 U.S. 539 (1985) ] when a magazine published a few hundred words from a long autobiography of President Ford, saying that the “heart” of the whole book had been taken by disclosing the former President’s rationale for pardoning his disgraced predecessor. On the other hand, courts also can dismiss claims with little explanation by saying the alleged infringement or material taken is de minimis–too small to matter.
The Distruptive Competition Project–with its nifty nickname of DisCO–has posted on its blog on IP issues about pertinent developments in the U.S. Court of Appeals for the Sixth Circuit, wherein judges provided a bright line rule requiring samples to be licensed to escape copyright infringement. They then applied their rule in Bridgeport Music v. Dimensions Films, finding a brief, sampled guitar solo was insufficiently transformative to win fair use protection.
In contrast, judges in the U.S. Court of Appeals for the Ninth Circuit, found that a six-second sample of a Beastie Boys track, as played in a flutist’s record, did not infringe in its brevity. (see Newton v. Diamond). Unfortunately, neither circuit addressed head-on a fair-use analysis about conciseness’ impact. Then the judges in the Ninth Circuit took on SOFA Entertainment Inc. v. Dodger Productions Inc., finding seven-second video clips of The Jersey Boy Musical from The Ed Sullivan Show sufficiently met the four factors under fair-use doctrine to be considered transformative and protected.
Who’s at risk?
Vine users are not the only individuals at risk when they post infringing content; many online brands that repost user-generated content also are at risk. As Maximize Social Business, a social media marketing and business blog observes of Vine videos, they “could expose a brand to allegations of trademark or copyright infringement, defamation, violations of rights of privacy, or misappropriation of other third party rights.” Because Vines automatically become public on publication by their creators, it’s tough for Twitter to vet posts in advance. The problem is compounded when the originals are “revined,” spreading user-generated content fast across the web. (See 10 brands successfully using cross promotion with Vine).
Proponents against Vine fair use
Those who create content–including musicians, composers, and lyricists–are fighting incursions on their intellectual property, not matter the brevity of the use. The late artist Prince, known for his path-breaking approaches to his creative works and his unreleting stance on copyright enforcement (remember the dancing baby?), was one of the first to send Twitter some DMCA take-down notices about Vine videos. Twitter quickly removed the content. As Maximize Social Business observes of the Vine posters, had any of them “contested Prince’s take-down notices, we could have seen a test case on what constitutes fair use on Vine.” This might have helped define what constitutes social media fair use, versus such protections on other communication channels.
Meantime, sports leagues and broadcasters have contested Vine uses, aggressively claiming intellectually property rights “to stifle perfectly legitimate communications and content” during big sporting events, TechDirt reports. The online technology and policy site says outfits like ESPN and Univision have invested heavily, like those with stakes in the cricket matches, and they don’t want to see others freely undercut their ability to exploit timely, unique, big, and hot moments from sports spectacles.
“When it comes to goals—breathtaking moments of glory seemingly tailor-made for the six-second looping video format—rights-holders are more stringent,” the Wall Street Journal has noted. During the 2014 World Cup, both Univison and ESPN sent clear warning to Vine users that they did not consider, even at six seconds, looped videos of events that they had bought rights to, to be fair use. Both networks sent take down-notices for Vines featuring World Cup goals. That also led to the suspension of many sports websites’ Vine accounts.
While strong support exists for a fair-use argument, brands should “tread cautiously when relying on the fair-use exception to copyright law in accepting Vine content from customers or creating their own content,” the marketing pros at Maximize Social Media warn. Based on how federal trial courts have ruled in the Ninth District, which holds sway over Hollywood and more, a Vine test case that made it to the appellate level might find judges receptive to de minimis or fair-use arguments. That may be even more so given Google Books’ recent win with fair-use claims. With conflicting views in the appellate circuits, it ultimately may be up to the U.S. Supreme Court, months or years from now, of course, to act as high arbiter over the protections or absence of same on six-second videos.