In 1994, the Supreme Court of the United States held that a musical group’s parody of a well-known song could be fair use, which is a noninfringing use of copyrighted content. In 2006, the Second Circuit found that an artist’s use of copyrighted photographs in his own artwork constituted fair use. In 2016, the Ninth Circuit found that a video of a child dancing to a short clip of a copyrighted Prince song could be fair use. But in 2022, a creator who attempts to share her fair use of copyrighted material online may not have recourse to the judicial system to vindicate her use—in fact, her fair use may never even see the light of day.
Over the past two decades, the rise of smartphones, social media, and broadband connections has transformed the Internet and the ways in which the world uses it to consume entertainment, news, and all types of artistic and political content. This transformation in technology has led to a corresponding rise in the democratization of expression and creation, as well as access to that creation. Online expression has migrated to platforms that host “user-generated” or “user-created" content, such as YouTube, Instagram, TikTok, and SoundCloud; the “openness” of these platforms has led to the popularity of user-created content that incorporates others’ copyrighted material “as an act of communication and expression.” The rise of these platforms, however, has concomitantly led to concerns about whether current law—the Digital Millennium Copyright Act of 1998 (“DMCA”)—can still sufficiently address the enormous volume of copyrighted material online, much of which is not authorized use. Indeed, several recent pieces of draft legislation, including the Digital Copyright Act of 2021 (“DCA”) and, more recently, the SMART Copyright Act of 2022, have suggested updates to the DMCA.