“Mood Forever”: Rethinking Fair-Use Cases in the Age of Social Media

In 2019, model Emily Ratajkowski faced a copyright lawsuit from photographer Robert O’Neill. O’Neill, a paparazzi photographer, had taken a street photograph of Ratajkowski. Ratajkowski later reposted the photo on her Instagram story, a feature of Instagram where one can temporarily post a picture for 24 hours, with an additional caption superimposed over the photo stating “mood forever.” [1] Under Section 106 of the Copyright Law of the United States, O’Neill held the exclusive right to authorize the reproduction of the photograph. Citing this exclusive right, O’Neill subsequently filed a complaint against Ratajkowski for her “unauthorized reproduction” of the photograph. However, Section 107 of copyright law outlines certain exceptions that fall under the category of “fair use,” stating that if the original work is reproduced “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,” then the reproduction does not constitute copyright infringement. [2] Ratajkowski’s lawyers argued that the Instagram story is fair use. In the photograph, Ratajkowski holds a bouquet of flowers over her face, blocking her face from paparazzi; in her repost, Ratajkowski also adds the text “mood forever.” Ratajkowski’s lawyers thus argued that the addition of the text transformed the photograph into a critique of the “abusive, aggressive, and harassing practice of paparazzi.” [3] 

Though initiated in 2019, the lawsuit received its first judicial opinion on October 2nd, 2021. U.S. District Judge Analisa Torres ruled that it is premature to determine whether Ratajkowski’s repost constitutes fair use. The prerequisite for a court to issue a summary judgment—i.e., an opinion without a full trial—requires all material facts involved in the case to be incontestable, whereas Judge Torres found that it is impossible to establish as a fact whether Ratajkowski’s reinterpretation of the photograph did transform its message enough to constitute “fair use.” [4] Judge Torres’ inability to determine fair use in Ratajkowski’s case reflects a broader deficiency in copyright law, where judges are often tasked with making artistic interpretations of copyrighted materials, thus blending subjective judgments with objective fact. Ratajkowski’s repost also invites a consideration of how the increasing popularity of social media, where any user can repost and transform the work of others on a public platform, affects copyright law. Altogether, Ratajkowski’s case urges a reexamination of who should be the authority in determining the intent of art, especially as the ability to reinterpret art is increasingly democratized through social media.

To discuss the implications of Ratajkowski’s case, this article will first examine the precedent governing the instances in which the unauthorized use of copyrighted works can be considered transformative use and thus be protected under fair-use laws. Then, this article will highlight the areas of subjectivity present in previous cases and Ratajkowski’s case, presenting the alternative of using a jury in future cases so that the burden of subjective interpretation does not solely rest upon judges. 

A commonly-cited precedent for transformative use is the 1994 Supreme Court case Campbell v. Acuff-Rose Music, Inc., offering a worthwhile comparison to Ratajkowski’s case as it also involves the unauthorized use of copyrighted work for purposes of criticism. [5] In Campbell, the music publishing firm Acuff-Rose Music, which owned the copyright to Roy Orbison's song “Oh, Pretty Woman,” brought a suit against Luther Roderick Campbell for the parody of “Oh, Pretty Woman” performed by his group 2 Live Crew. The parody was determined to be fair use in a U.S. District Court, but a Court of Appeals subsequently reversed the decision. The court stated that, as the parody generated profit, its commercialism weighed against the claim that it was fair use, as fair-use determinations typically favor reinterpretation of art for nonprofit purposes. [6] When the case reached the Supreme Court, Judge Souter responded to this point in the majority opinion: “the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” [7]

Thus, the Supreme Court established that even if a work is commercially distributed, the “transformative” nature of it—the extent to which the new work alters the original with “new expression, meaning, or message”—can outweigh the commercialism. [8] The emphasis on the degree to which a work is transformative here highlights the high level of subjectivity involved in determining fair use. To deem something as transformative requires the audience to both have a clear understanding of the intent of the original work and the intent of the new one; it also requires an arbitrary determination of the amount of transformation sufficient to counter other factors such as commercialism. Yet, the very works that copyright law seeks to protect—art, literature, music—are known to be ambiguous or abstruse in their intended message. Given these uncertainties, it is unclear as to who should have the authority to determine the intent of such works.

Ratajkowski’s use of the phrase “mood forever” illuminates the difficulty of forming judgments on the intent of artwork in copyright law. Grasping the intent of “mood forever” requires judges to have an understanding of pop culture and be able to distinguish a concrete meaning of the phrase across its fluctuating meanings: though Ratajkowski’s team claims her use to be condemning and critical, “mood forever” may also be used in a celebratory tone, which may cause it to deviate from the “comment and criticism” that constitutes fair use. The elusive nature of Ratajkowski’s “mood forever” also reflects an issue for much of the materials that circulate on social media, where anyone can subvert and change the meaning of a phrase or a photo by reposting, thereby creating additional uncertainty as to which interpretations should be granted authority. 

The platform on which Ratajkowski’s dispute occurred, Instagram, is also a platform where the majority of users are under the age of 35, while the average age of a district court judge is 45. [9] Like Instagram, other popular social media platforms like TikTok, Twitter, and YouTube, also have younger demographics. [10] While these statistics only offer generalizations, they do raise the possibility of the content on these platforms being less comprehensible to certain judges than they are to younger generations. For example, trending forms of creative expression on these platforms, such as highly filtered memes (also known as “deep-fried memes”) and trending terms such as “cheugy” or “sus,” all appeal to a niche sense of humor most prevalent in younger generations, making its intent difficult to grasp. As creative products such as memes become monetizable and thus implicated in copyright claims, they again call into question whether judges should hold the sole authority to interpret materials that have such elusive meanings, especially for older generations. 

Ratajkowski’s case showcases the new challenges social media poses for copyright law, as images or text phrases that often require niche understandings of pop culture and that have constantly fluctuating meanings now need to be reduced into one singular interpretation by select judges. The United States Court System holds that the role of judges is to “determine the facts and apply legal principles”: judges hold authority in terms of the law, but in cases where transformative use must be determined, they are also asked to become authorities in art and culture. [11] As exemplified by the inability to reach a conclusive ruling in Ratajkowski’s case, the possibility for multiple interpretations of a creative work is not always conducive to the need for exact material facts in the law. 

The Court has confronted a similar problem in cases involving the issue of obscenity and obscene speech. Like fair-use cases, judges also must make similarly subjective judgments in obscenity cases, deciding whether material violates relevant obscenity laws. In Miller v. California (1973), the Court sought to define obscene material, ultimately settling on a test which includes a prong requiring that “the average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest.” [12] Here, the references to an “average person” and “community standards” show that judgment in obscenity cases emphasizes a need for judgment from someone who is representative of the community and who has sufficient cultural understanding. Thus, by the same logic, fair-use cases, which similarly require subjective interpretations of creative works, should perhaps also have an increased focus on the representation of the “average person” and of a shared cultural understanding. Rather than granting judges total interpretive authority, the diversity of those who interpret these works should mimic the diversity of interpretations inherent within the works themselves, indicating a need for a reintroduction of the jury to fair-use cases.

For two centuries, fair-use cases have been tried by a jury. However, a shift occurred after the 1984 Supreme Court case Harper & Row, Publishers, Inc. v. Nation Enterprises, where the Court issued the opinion that appellate courts, which do not have juries, can issue judgments independently of district courts, which use judges and juries to deliberate. Multiple courts subsequently took this opinion to indicate that fair-use cases can be determined without a jury at summary judgment. [13] While the role of the jury has grown gradually less important in fair-use cases, expanding the use of the jury now could present a viable solution to the unique copyright challenges posed by social media. Instead of attempting to establish a perfect authority on what a creative work means, using the jury would acknowledge that there is no way to establish an unambiguous, factual interpretation of such a work. 

With the increasing presence of creative works being shared on social media, art is no longer something confined to a museum, but instead has become something that is available to all members of the public. Therefore, the demographic of those who determine what is fair-use should also reflect the diverse audience of work—a matter for the jury, not a single judge. However, using a jury is far from being the perfect solution. For one, instituting a jury could lead to slower judicial proceedings, and with an increase in fair-use cases accompanying the growing reliance on the internet, the quantity of these cases will only increase, making efficiency all the more necessary. On the other hand, cases like Ratajkowski’s could also be made more efficient if a jury was immediately invoked. In Ratajkowski’s case, because Judge Torres was unable to make a summary judgment, the case may now progress to a trial by jury. In hindsight, if Ratajkowski was granted a trial by jury from its very beginning, perhaps months of waiting and deliberation could be saved. Overall, despite its shortcomings, a return to the jury may promise a more accessible, equitable, and even at times more efficient future for fair-use cases. 

Edited by Jihoon Ko

Sources:

[1] Ashley Cullins, Emily Ratajkowski Instagram Copyright Suit Steps Toward Trial, The Hollywood Reporter (October 1, 2021), online at https://www.hollywoodreporter.com/business/digital/emily-ratajkowski-paparazzi-instagram-suit-1235023222/.

[2] 17 U.S.C. § 101

[3] O’Neill v. Ratajkowski et al, Justia, online at https://dockets.justia.com/docket/new-york/nysdce/1:2019cv09769/525048 (visited November 12, 2021).

[4] Ibid

[5] "Campbell v. Acuff-Rose Music, Inc." Oyez. online at https://www.oyez.org/cases/1993/92-1292 (visited November 12, 2021).

[6] Ibid.

[7] Ibid.

[8] Ibid. 

[9] Statista Research Department, Distribution of Instagram users worldwide as of July 2021, by age and gender, Statista (September 7 2021, online at https://www.statista.com/statistics/248769/age-distribution-of-worldwide-instagram-users/); Zippia, District Court Judge Demographics and Statistics In The US, Zippia (September 9 2021, online at https://www.zippia.com/district-court-judge-jobs/demographics/).

[10] Khoros, The 2021 Social Media Demographics Guide, Khoros (2021, online at https://khoros.com/resources/social-media-demographics-guide).

[11] United States Courts. “Court Role and Structure.” United States Courts. Accessed November 30, 2021. https://www.uscourts.gov/about-federal-courts/court-role-and-structure. 

[12] “Obscenity.” Legal Information Institute. Legal Information Institute. Accessed November 30, 2021. https://www.law.cornell.edu/wex/obscenity#.  

[13] Snow, Ned. “Judges Playing Jury: Constitutional Conflicts in Deciding Fair Use on Summary Judgment, ” 44 University of California Davis Law Review, 485–486, (2010); Snow, Ned. “Who Decides Fair Use–Judge or Jury? ” 94 Washington Law Review, 278-279, (2019).