Insta-Appropriation: Finding Boundaries for the Second Circuit’s Fair Use Doctrine After Campbell
By Anna Schuler
Copyright law’s current fair use landscape is riddled with unclear standards and old considerations forced upon new media. This is especially problematic in the context of digital appropriation of art from online social media platforms—an issue highlighted by Richard Prince’s exhibit “New Portraits,” in which he appropriated strangers’ Instagram photos for his own profit. Unless this situation is remedied, digital content creators will effectively lose their statutory copyright protections. Thus, when considering digital appropriation cases, courts should require a transformation of content rather than purpose, should elevate the weight of the fourth statutory factor, and should reinstate the “comment upon” standard for works of parody and satire. Other scholars have proposed changes to the fair use doctrine, but none adequately protect first-order digital content creators. As such, this Note proposes a reinterpretation of the fair use factors in light of digital appropriation and social media.