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26 Fordham Intell. Prop. Media & Ent. L.J. 689
Note by Sara Gates*
ave you ever read an article online and noticed a link to another publication at the bottom? The credit—which may be stylized as a “hat tip” or a “h/t”—is a subtle nod to the source of the story.1 In many cases, the link directs the reader to another article with a hat tip, which directs to another article, and sometimes to yet another.2 Follow the hat tip trail to the beginning and you may find the original source of the story.3 Or you may have just stepped into a spiraling Internet wormhole. While most journalists include this link—either for sourcing reasons or as a professional courtesy4—some online writers forgo the hat tip, and even fail to include attribution altogether.5 At best, failing to include attribution is lazy. At worst, it sets the stage for a potential copyright infringement claim.
With the widespread use and ease of social media, more and more pitches6 and story ideas are originating on social media and user-generated content websites.7 For example, a mother may post a video on Facebook of her child dancing,8 or an anonymous Reddit user may share a heartwarming story about a celebrity surprising an ill fan.9 Writers working under the pressure of quotas or pay-per-article freelance fees typically write up a quick piece, hope it goes viral, and move on to the next story. The tendency to follow this pattern is magnified by the twenty-four hour news cycle in which stories become stale within days, or even hours, unless a fresh take breathes new life into a decaying piece of news.
If credit is not given where it is due, then the original content creators are cut out of the loop, leaving their content to be repeated again and again with little regard to where it originated. Originality may be the sine qua non of copyright,10 but in the realm of the Internet it is difficult to express a truly original thought, let alone receive credit for it.
As the journalism industry continues to adjust to evolving online platforms—be it Snapchat’s Discover feature11 or the next big social media website—the legality and ethics of some of the industry’s practices remain murky. This Note discusses viral content farming and aggregation by journalists and online writers, examines proposed solutions within the journalism industry and the law, and offers a possible legal resolution to the problem. It argues that certain content creators who post on Facebook, Twitter, and Reddit will be able to bring a copyright infringement action against an online writer who takes their creative content and republishes it with little-to-no attribution.
Part I introduces the concept of viral content farming, examines its origins, points out how it differs from aggregation, and considers the purpose behind the practice. The Part looks at how companies such as Google and Facebook have responded, and examines the overall impact on journalism and the Internet. Part II presents a possible ethical solution within the journalism industry and considers resolutions in the law by describing the “hot news” misappropriation doctrine and copyright law. Part III scrutinizes three proposals and discusses why copyright law is the most appropriate solution to the problem, then analyzes content farming within the framework of the U.S. copyright regime.
* Editor-in-Chief, Fordham Intellectual Property, Media & Entertainment Law Journal, Volume XXVII; J.D. Candidate, Fordham University School of Law, 2017; B.A., Journalism and Politics, New York University, 2012. I would like to thank Professors Irina Manta and N. Cameron Russell for their guidance and feedback in developing this Note, the IPLJ Editorial Board and staff for their hard work throughout the editorial process, and my friends in the journalism industry for encouraging me to write about this topic.
Hat Tip, Oxford Dictionaries, http://www.oxforddictionaries.com/us/definition/american_english/hat-tip [https://perma.cc/KG9D-L545] (last visited Feb. 15, 2016).↩
See, e.g., Sadot White, Lady Rants on Facebook About Old Woman’s Heart Attack Ruining Her Dinner, FAF Mag. (Jan. 6, 2016), http://www.fafmag.com/news/heart-attack-ruined-girls-dinner/ [https://perma.cc/K6UC-CM7C]. The article links to DudeComedy, which links to Distractify, which links to the Daily Mail, which links to Facebook.↩
See Jihii Jolly, The Ethics of Linking, Future Journalism Project (Feb. 29, 2012), http://tumblr.thefjp.org/post/18496496036/the-ethics-of-linking [https://perma.cc/F65Y-TNVH]; Jonathan Stray, Why Link Out? Four Journalistic Purposes of the Noble Hyperlink, Nieman Lab (June 8, 2010, 9:30 AM), http://www.niemanlab.org/2010/06/why-link-out-four-journalistic-purposes-of-the-noble-hyperlink/ [https://perma.cc/E7Y8-URVE].↩
See, e.g., Joe Veix, Can You Spot the Attribution in this Story BuzzFeed Allegedly Ripped from The Advocate?, Death & Taxes (July 30, 2015), http://www.deathandtaxesmag.com/257746/can-you-spot-attribution-buzzfeed-ripped-the-advocate/ [https://perma.cc/Z5MP-9P8B].↩
Before writing an article, journalists usually must first pitch the idea to their editor, or, in the case of freelance writers, to a publication that accepts article submissions. See Ann Friedman, The Rules of the Freelance Game, Colum. Journalism Rev. (Sept. 6, 2012), http://www.cjr.org/realtalk/the_rules_of_the_freelance_gam.php [https://perma.cc/ESA5-QQAS]. Pitches typically focus on a particular trend or include the who, what, where, and when; the reporter then seeks out the why. See Tom Huang, 6 Questions Journalists Should Be Able to Answer Before Pitching a Story, Poynter (Aug. 22, 2012), http://www.poynter.org/2012/6-questions-journalists-should-be-able-to-answer-before-pitching-a-story/185746/ [https://perma.cc/9ZJC-WB86].↩
See, e.g., David Lohr, Little Girl and Her Pregnant Mom Dance Their Way to Viral Stardom, Huffington Post (July 1, 2015, 4:16 PM), http://www.huffingtonpost.com/2015/07/01/mother-daughter-dance-video_n_7706978.html [https://perma.cc/A62D-W6FQ].↩
See, e.g., Kimberly Yam, Patrick Stewart Surprises Trekkie Who Has Life-Threatening Illness with Out-of-This World Visit, Huffington Post (Sept. 11, 2014, 6:11 PM), http://www.huffingtonpost.com/2014/09/11/patrick-stewart-surprises-young-fan_n_5804830.html [https://perma.cc/W3G8-9EFN].↩
See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991).↩
See Introducing Discover, Snapchat Blog (Jan. 27, 2015, 7:29 AM), http://blog.snapchat.com/post/109302961090/introducing-discover [https://perma.cc/87WZ-DE9Q].↩