Social Media Joke Thieves Are No Laughing Matter - Fordham Intellectual Property, Media & Entertainment Law Journal
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Social Media Joke Thieves Are No Laughing Matter

Social Media Joke Thieves Are No Laughing Matter

Have you heard that one about Becky from sixth grade? How about the one about your Facebook friend from high school who likes sharing racist articles?

Both jokes went “viral” and were widely shared on social media networks like Twitter with little-to-no regard for who first created the witty one-liners. Although Twitter and Facebook have built-in tools that allow users to share the original posts, many just copied the quips word for word.

The concept of content theft and joke stealing is by no means new to social media. Many users have fallen victim to accounts that have reposted content as their own with no credit (or even a hat tip) to the original author. More recently, Instagram accounts like @thefatjewish and @f*ckjerry have come under fire for posting content ripped from social media and sites like Reddit and Tumblr. While some argue that users like The Fat Jew (real name: Josh Ostrovsky) are a product of Instagram, others contend that they are purely stealing content – and making money off of it

But if these users are stealing content, shouldn’t they face legal liability?

The initial posters may use copyright law to bring a claim, alleging infringement of their intellectual property right, if they are able to show: (1) they own the copyright, (2) there’s a violation of an exclusive right in the copyrighted work. See 17 U.S.C. §§ 102, 106. Copyright protection exists “in original works of authorship” as soon as they are “fixed in any tangible medium of expression.” 17 U.S.C. § 106. However, the alleged infringers may raise a defense, such as fair use, which would exempt them from infringement. See 17 U.S.C. § 107. (In The Fat Jew’s case, a fair use argument is probably weak because the doctrine considers such factors as “the purpose and character of the use, including whether such use is of a commercial nature.” See id.)

Yet, bringing a lawsuit may not be the most attractive avenue for users seeking to pursue alleged content thieves because it would entail dragging someone to court over a single Instagram post or a 140-character tweet.

Instead, the burden of policing infringement claims should fall on social media companies. Twitter has already made inroads in this area by complying with user requests and Digital Millennium Copyright Act (“DMCA”) complaints. And, rather than merely deleting the reported post, Twitter may replace it with a disclaimer that reads: “This Tweet from [user account] has been withheld in response to a report from the copyright holder.”

Twitter’s choice to swap out tweets with the disclaimer is certainly a step in the right direction, but the social network could do more. If the original post is easily traceable (or if the copyright holder provides the proper attribution), the disclaimer could include a link to the original tweet or, at the bare minimum, the name of the copyright holder and credit to their account.

Though Twitter should be lauded for its efforts, the sheer cost of monitoring infringement claims for millions of users will likely deter other social media companies from instituting similar policies. But if social media sites don’t take responsibility for its content-stealing users, then who will? Making an example of reported accounts and providing easy access to the original post could go a long way in deterring future content thieves.

Sara Gates

Sara Gates is a second year student at Fordham University School of Law and a staff member of the Fordham Intellectual Property, Media & Entertainment Law Journal. Before law school, she worked in online media. You can find her on Twitter @saramgates.