GIF Gaffe: How Big Sports Ignored Lenz and Used the DMCA to Chill Free Speech on Twitter
Andrew T. Warren*
ARTICLE

  The full text of this Article may be found here.

27 Fordham Intell. Prop. Media & Ent. L.J. 103
Article by Andrew T. Warren*

ABSTRACT

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any major sports leagues including the National Football League, Major League Baseball, and Ultimate Fighting Championship have consistently used the Digital Millennium Copyright Act (“DMCA”) to remove user-created GIFs, Vines, and related content that make use of the leagues’ copyrighted broadcast material on Twitter. This Article analyzes Twitter users’ right of fair use in the leagues’ copyrighted material, while suggesting that sports leagues and their agents may not be following the Ninth Circuit’s Lenz v. Universal Music Corp.decision, which requires copyright owners to consider fair use before submitting DMCA takedown notices. Sports leagues’ protocol and actions towards GIFs and Vines on Twitter are the backdrop used to examine Twitter’s conflicted role and inconsistent history in complying with an array of DMCA takedown notices across varied forms and industries. On Twitter, the DMCA has not served to successfully strike a balance between the rights of the copyright holder and user. Instead, the law adversely impacts users making fair use of copyrightable material and makes that use fundamentally impractical on a social media service that exists in and mirrors, the real-time lives of its users. Whether a user posts material that is eventually found to be infringing or not, that material may easily be blocked for a period of time that would make its eventual reinstatement to the service effectively meaningless. Barring a court ruling on the issue of fair use in GIFs, Vines, and similar material, changes should be made to section 512 of the DMCA in order to strike a more equitable balance between copyright owner and fair user. The DMCA must reflect the truth that popular social media platforms, such as Twitter, YouTube, Facebook, and Instagram, are each utilized for distinctive purposes and that the laws that achieve fairness in digital copyright on one service may also serve to suppress free speech and the right of fair use on another.

* LL.M. Intellectual Property, George Washington University Law School; J.D., Suffolk University Law School; B.S., Boston University College of Communication; Former Legal Associate and NHLPA-Certified Agent, Jay Fee Sports Group, LLC. This Article won first place in the 2016 Marcus B. Finnegan Competition for best essay in any area of intellectual property law by a George Washington University law student. I would like to thank Professor Robert Brauneis for his masterful instruction of copyright law, Professor Meaghan Kent for her wealth of practical knowledge and writing tips, and Professor Dawn Nunziato for her enthusiastic teaching, comments, and encouragement during the development of this Article. I would also like to extend a special thank you to my parents, Jan Trenholm and William Warren, as well as my grandfather, George Warren, for inspiring me to practice law, and my grandmother, Kris, and sister, Alexandra, for their unwavering love and support.