For those of you living under a rock, memes typically consist of a picture that has come to represent an idea, coupled with text that applies that idea to a specific situation. LOLcats are a relatively early example. Since I have the Olympics on, I'm reminded of Makayla Is Not Impressed. Others include Good Guy Greg, Scumbag Steve (with Scumbag Steve's hat becoming something of a meme of its own), The Most Interesting Man In the World, and Doge.
If you take a moment to think about about it, you will quickly realize that the subject is an iceberg. There is so much to discuss, and most of it may not even be apparent. If I were trying to operate this blog like a class, I would have to wait until near the end of it to bring up memes.
Alas, I have to write the posts I have, not the posts that I wish I had, or might have at a later time.
So this friend of mine was wondering about Internet memes, and whether there are associated copyright concerns. Well, a meme consists of a picture (so there's a copyright concern there) with text (so there could be a copyright concern there), and a successful meme will generate millions of copies and derivative works (so there's a copyright concern there). Basically, the whole thing is a copyright concern.
Copyright protection subsists in original works of authorship fixed in any tangible medium of expression, but not the underlying idea, procedure, or process. As the word itself implies, a copyright at its most basic is the right to make copies. There are other rights that go along with the right to make copies, such as the right to make derivative works, and the right to use the characters in the work.
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| So bed. Much sleepy. Very wow. |
But I wasn't trying to make any kind of character. I just thought the Internet needed to see how cute my dog is. Should that matter? Should I be given protection for a character I didn't mean to create?
Now suppose that somebody takes a picture of her dog, which is of the same breed as my dog and thus similar-looking. She captions it in the style of the meme featuring the picture of my dog and posts it online. She hasn't infringed my copyright in my picture, because she took her own picture. Has she infringed on my character? Probably. But what if her dog is not of the same breed as my dog? It can't really be the same character, can it? Changing the breed of dog in the picture is a transformative act. The germ of the original meme is still present - a picture of a dog with a caption of a certain style. To the extent that the new picture recalls the old one, there was a certain amount of reuse of material, some of which may be elements protected in most circumstances by copyright law.
The law allows an amount of "borrowing" of previous works. This permitted "borrowing" is known as fair use. Fair use can often be the reproduction of sections of a work for education or for criticism, or the full scale copying of a TV program for viewing at a more convenient time. Parody is widely recognized as a form of fair use, although that is not hard and fast as the Supreme Court's last word on the matter said that parody "may be" fair use. Campbell v. Acuff-Rose Music, Inc., 510 US 569 (1994). It is obvious that parody requires enough of the original work's elements to identify the original work. A parody must also comment on the original work in some way, generally to ridicule it. The fact that the second picture is probably a parody makes it unlikely to infringe whatever rights I might have in the meme.
There are a wealth of issues here, the fodder for many a discussion. I'll pick it back up later on down the blog, but that's all for now.
*How memes are actually made and why they work is a project for a doctorate in sociology, and seriously outside my expertise, such as it is.
