There are tons of sites online where one can sate their thirst for hilarious, life-changing, jaw-dropping, mind-blowing listicles and other forms of short, snack-able content. All one has to do is track down and click a link with an inappropriately over-the-top title and then — boom! — content that figuratively disengages one’s head from one’s neck with profundity, absurdity, and abject viral-ity. Perhaps you too want to share this link within your sphere of influence. Now spread far and wide across the web, the list of clickbait sites pandering to listicle-lovers with an itchy mouse finger is a long one.
These sites rose to prominence by gaming social media and search algorithms to place their links in prominent and clickable places across web and mobile platforms. By selling advertising and tucking “native ads” in amongst their content, these sites made boatloads of cash. And, the sites were highly profitable given the low overhead necessary to swipe photography, journalism, and other content from third-party creators.
While some of the clickbait sites employ writers, and fewer employ photographers and other visual artists, most of them employ a dubious type of creative, one that has come into existence only recently, in this deity-forsaken time that has come to be known as the Age of Insta. Behold, the “curator.”
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A clickbait curator is one whose talents are scrolling-and-trolling, locating text and photographs to steal, and combining material stolen from one artist with material stolen from other artists to create “new and original” and more importantly, highly clickable and viral, content. All this while the real creative, he or she who actually wrote the joke or crafted the photograph, is rarely notified that their work is being “curated” and monetized by a “new media” company.
And compensation? Surely you jest. The clickbait sites, with their lofty valuations, enjoy all profits and traffic that result from the unauthorized use of these artists’ work. After all, these third-party artists did nothing more than conceptualize, develop, and create the artwork that the clickbait curator had the skill to “right click” and “save as” and then upload to their site, perhaps adding a pithy and curiosity-piquing title in the process. At best, the website will compensate the artist by providing a “hat tip” or an @-ing or a link drop and claim that this “exposure” is worth its weight in industry gold! Of course, if you try to pay your rent in exposure you will find yourself spending a lot more time outdoors.
The copyright safe harbor for new media companies was used to shield this type of infringement for years while courts grappled with the vagaries of the internet. But after a raft of lawsuits were filed against the clickbait cabal, some of the sites have seen the error of their ways and saw fit to license content from writers and photographers or even hire them to create new material. Many others, though, blithely carry on. If caught red-handed with a third party’s content, the infringing clickbait site will often moan that the post itself made only so much in revenue, ignoring the fact that the multi-million-dollar valuation of the site, and the site’s ability to attract advertising dollars, was built on web traffic that was in turn built on the back of third-party creators. Indeed, the online advertising market is enormous — it recently exceeded (for the first time ever) the amount spent on television ads — and while most of the estimated 72 billion ad dollars are gobbled up by Facebook and Google, there are plenty of healthy little morsels left over for a curated site populated by purloined content.
The inequity of new media vis-a-vis old media is profound in this regard. A television station has to pay writers and actors and the people that point the cameras, and magazines have to pay writers and photographers and graphic designers. And if a network broadcasts, or a magazine publishes, content that has been lifted from a third-party creative, litigation is bound to follow. But, “new media” sites can have somebody curating the bejeezus out of articles and photographs (which, ironically, often come from old media titles that still pay money decent enough to support the creation of in-depth and thoughtful material) and when caught with its mouse in the cookie jar claim to have provided hat tips and exposure and made fair use of material that it figured was free to use because it was viewable online.
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Courts are now recognizing that this paradigm needs some serious shifting. Allowing online publications to display, broadcast, and otherwise exploit photography and other content while requiring “old media” outlets like magazines to actually pay license fees and other compensation to creators is an exercise in inequity. One recent case addressed the business model behind a site called “Oh No They Didn’t,” which resides within the LiveJournal universe. The site published all sorts of apparently nicked content, such as unauthorized photographs of a pregnant Beyonce. The site denied infringement, claiming that its users submitted the photographs to site moderators for posting and as such the site did not need authorization from the copyright holder to publish the work. Never you mind that the moderators were people whom LiveJournal selected and trained, and who actually screened and posted the site’s infringing content. The appellate court was not swayed, finding that an issue existed as to whether these moderators were agents of the site, whether it was the moderator or user that actually posted the infringing material, and whether the site enjoyed a financial benefit from this publishing. The case was remanded for trial on these issues, and, hopefully, some clarity as to the issue of whether the theft of content is fine so long as it is in the realm of new media.
The harsh impact of the rise of clickbait and content theft is already manifesting in depressing ways. While the breadth of material available to readers and viewers may be far wider than ever before, the depth of the material is disappearing. So, we have more content, but none of it is all that great and there is far too much of it to sift through. Investigative journalism, the documentation of happenings in foreign lands, and the creation of anything, really, that requires more than the most modest of budgets, is fast becoming a thing of the past. We are rapidly approaching a day where only the very rich, the corporate-backed, or the philanthropic will be able to create content of substance, and all other voices will be muted for lack of resources. Which means more to scroll through or gawk at, but much less to enrich, enrapture, and engage us. Unless your life truly is changed and your mind blown by scrolling through pictures of seven llamas that look like former President William H. Taft, in which case things are only getting better.
Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at [email protected], and you can follow his law firm on Instagram: @veniceartlaw.