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Of memes and copyrights

Wan Adzhar explores the complex interaction between memes and copyrights, and why copyrights can be unjustified, yet useful.

Our world is largely informed by the jokes, and commentary that our friends and influencers make on social media. Thus, memes are native to the language of social media. In the broadest sense, a meme is “an idea, behaviour, style or usage that spreads from person to person within a culture” and Internet memes form a subset of that behaviour that takes place online.

As memes grow in cultural significance, they become more commercially significant, reeling in companies seeking to incorporate them in their promotional campaigns. In addition to being free, their instant recognizability is easily leveraged to create a connection between the consumer and the business’ brand resulting in less overt promotions and more of the humorous “internet conversations” that millennials already have. For example, Gucci created a meme based campaign called #TFWGucci in May to promote its Le Marché des Merveilles watch collection and Denny’s Pancakes took to twitter, where users were directed to an area on a photo with tiny text that leads them to another area of the photo, and so on, until a joke or text is revealed.

Copyrights and legislation
However, by using memes to advertise, companies could be violating intellectual property protections. In a 2013 lawsuit, Charles Schmidt, the creator of the Keyboard Cat meme and Christopher Orlando Torres, creator of the Nyan Cat meme, claimed that their works were unlawfully used in various Scribblenauts games and sought damages for trademark and copyright infringement. Plenty of these cases have followed suit.

Proponents of copyrights argue that copyrights allow creators recognition and compensation for their product. This is particularly important when big brands use memes in their marketing campaigns, which can lead to potential profit for creators.

Additionally, copyrights serve to prevent the misuse of a creator’s meme. Matt Furie originally created Pepe the Frog for his Boy’s Club comic, but it later developed into an internet meme, and during the 2016 US presidential election, the alt-right movement appropriated the frog in various grotesque and malignant memes. Furie has since issued Digital Millennium Copyright Act (DMCA) takedowns targeting prominent alt-right creators among others who are directly profiting from Pepe’s image. Copyrights not only provide recognition, but also utility in allowing control over how the creators intended their initial product to be used in the first place.

The case against copyrights
But not all of Furie’s DMCA takedowns are as straightforward. The key criteria for whether a work constitutes fair use (the concept underpinning DMCA legitimacy) of an existing copyright is that it is “transformative”. Thus, by leaning on the DMCA to pursue makers of art he doesn’t like, Furie is taking regressive steps in interpreting what fair use is and what it means for anyone who creates original work.

Applying a moral limitation to the idea of fair use is risky. For one thing, fair use limitations are already ambiguous, even without introducing a moral component. For another, pursuing a DMCA takedown, even where the use is clearly an infringing for-profit use, sets a precedent for allowing the kind of countercultural ideas that flourish in meme and remix culture to be threatened purely due to a creator’s disapproval.

Who owns a meme?
According to researchers Michael Soha and Zachary McDowell, a meme cannot be owned or ‘authored’ like a song due to its seemingly accidental, collective creation. For example, the Harlem Shake meme is a collectively produced cultural phenomenon. Although YouTube considers Baauer the ‘author”’, the force behind the virality of the phenomena came from the likes of Filthy Frank, TheSunnyCoastSkate, Redditors, and everyone else who contributed to the collective formation and sharing of the meme. Thus, the memetic nature of digital culture highlights the processes of production, rather than a finished, authored product.

Ultimately, there’s still a large grey area surrounding what constitutes fair use. The clause is frequently enforced in a way that pressures remixers to defend the edited qualities of their works, rather than copyright holders acknowledging that the remixers’ works are examples of fair use.  While copyrights are unlikely to be less restrictive in the near future before  advertisers take advantage of this brave new world— and reign triumphant like Success Kid — they need to understand meme ownership and how to gain permission for usage. While we might hope that all meme creators are Good Guy Gregs, there could be a lot of trouble if the meme you use belongs to a Scumbag Steve.

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