By: Taylor Bussey
Memes utilize pop culture content, such as movies, television shows, and other various forms of media, often in a parodic way. Such uses are often methods of social commentary regarding the user’s own life, or more broadly, current events; they also often utilize copyrightable material.
[i] Memes are also a form of communication that distinguishes generations. While Baby Boomers and older Millennials may understand most memes to an extent, Generation Z and younger generations have developed an extremely unique method of communication through memes and satire. Brands have recently begun to co-opt this form of communication in an attempt to capitalize on the prevalence and effectiveness of memes.[ii] Existing copyright law is ineffective in its application to new forms of digital media.[iii] While intellectual property remedies are painfully slow, the internet is on the cutting-edge of fast paced communication. Thus, copyright enforcement mechanisms are out of their league, so to speak, with respect to their application in this new digital world. With this brief background in mind, this blog post explores the implications of copyright protection of memes. In particular, it explores why copyright of a meme’s underlying content does not matter in a normative sense. In this blog I argue that copyright protection of the content underlying memes does not matter because of the relative weakness of enforcement mechanisms for copyright infringement of this scale.
2. LAW AND ECONOMICS
The Coase theory teaches us that, with respect to incompatible uses, the legal system has two overriding functions.[iv] First, it must identify which of the competing uses is more socially valuable.[v] Second, it must identify the proper legal mechanism to improve the likelihood that the more highly valued use will be achieved.[vi] This balancing and weighing are central in many, if not most, tests for efficiency
a. Memes Provide a Social Benefit
First, identifying which of the competing social uses is more socially valuable is difficult. On one hand, those who view intellectual property rights as a limited monopoly would suggest that even derivative use of the content in a meme is infringement on the rights holder’s interest.[vii] Others argue that use of copyrighted content in memes is a classic case of fair use, given that a meme’s creator transforms the underlying copyrighted work into a new form of expression or commentary.[viii] The problem in the meme context, from my perspective, is that use of copyrighted material in memes is not a serious harm for two reasons: (1) memes are incredibly useful and (2) derivative content does not threaten the longevity of a copyright’s enforceability.
Principally, memes have developed among younger generations as a cornerstone of social commentary, personal expression, and innovative comedy. Instagram meme accounts, who boast millions of followers, prove this.[ix] Just a brief glimpse at a meme can demonstrate just how little copyright protected material is used.[x] In fact, on the contrary, memes can operate as a source of marketing and a way to garner interest in creative works in a funny, generationally relevant way. Although the user derives some benefit from the meme without purchasing or licensing the underlying content, the creator of the content also uniquely benefits from the increased exposure to individuals who may not otherwise interact with their content. This is demonstrated by corporations repeatedly using memes and meme culture, albeit to varying degrees of success.[xi] There are countless articles and marketing studies directing corporations on how to market via memes to reach the maximum level of engagement.[xii] These so called “rules for meme marketing” instruct corporate entities to be “authentic” and “relatable.”[xiii] This begs the question of whether or not memes as a class are entirely harmful in the first place. If memes are so powerful to engage users with the underlying content, as recognized by their increased use as an advertising tool, then how can the same corporations claim that memes are creating a serious harm that the law should recognize and protect? Put differently, is it fair for corporations to have their cake and eat it too?
Further, derivative uses of copyrights do not threaten copyright enforceability or longevity. Trademark, another form of intellectual property, is threatened by genericide and derivative use because such uses may dispossess the rights holder of their entitlement.[xiv] Patents may also be threatened by widespread use; if an idea is not novel or non-obvious enough it will not qualify for protection in the first place.[xv] Copyrights carry no such threat. Accordingly, meme usage of copyrighted content does no actual harm to the protections afforded to copyrighted works.[xvi]
b. Costs Versus Benefits of Copyright Protection
The costs of preventing the harm are grandiose when compared to the actual harm that use of copyrighted material in memes causes. While reporting and removing copyright infringing memes is now easier than ever, such removal efforts still demand significant time and money. Basically, corporations must employ someone willing to scour the internet and report such infringing content by either filing Digital Millennium Copyright Act (DMCA) takedown notices, reporting such individual posts via the methods provided by social media platforms, or both.[xvii] Given the pervasive nature of the internet and memes, however, such time can add up to be significant costs for corporations holding intellectual property rights.
For example, Getty Images filed hundreds of lawsuits against users of the “awkward penguin” meme.[xviii] In one instance, Getty Images pursued a German blog—Geek Sisters—for almost $900 in licensing fees for their use of the awkward penguin meme.[xix] One law firm quotes a $3,500 to $5,000 retainer fee, and then average hourly billing rate of $250 to $600 per hour.[xx] When compounded, the search and takedown time can cost thousands for just a few memes. While Getty Images did not release the actual cost of pursuing the licensing fees, it would be appropriate to assume that the associated costs were much higher than their expected recovery of $900. Efficiency theories suggest that if the costs outweigh the benefits, then a rational actor will simply forego the activity.[xxi] In the abstract, corporations are generally viewed as highly profit motivated entities.
Why then, do corporations shell out millions of dollars filing lawsuits and issuing DMCA takedown notices for seemingly nominal harms? Getty Images, like many other corporations, cite a duty to the artists that they represent in order to justify the costs.[xxii] In a statement regarding the actions against blogs, like Geek Sisters and others, Getty said “[w]e believe in protecting copyright and the livelihoods of photographers and other artists who rely on licensing to earn a living and fund the creation of new works… Getty Images has an immense responsibility to the 200,000+ artists we work with.”[xxiii] While Getty may posit that their motivation is paternalistic, what this statement fails to mention is the personal interest that Getty has in stopping the use of their images in memes. The legitimacy of Getty and other similar corporations relies on their efforts to strongly protect intellectual property rights. Without doing so, Getty would lose legitimacy among creators who rely on Getty for licensing fees and protection. A possible explanation—albeit cynical—to the seemingly inefficient pursual of IP claims against memes is not that such memes are harmful in the abstract, but that such use threatens the institutional legitimacy of corporations who are tasked with defending the IP rights of creators.
c. Why Coasean Bargaining Doesn’t Occur
My argument is that protection of the underlying content is irrelevant because the relative costs of enforcing these rights outweighs the benefits of protection. Coase argued that, absent transactions costs, parties will bargain, and resources will flow to their most valued use without regard to the initial grant of entitlement.[xxiv] Intellectual property law recognizes a limited monopoly-esque property right for the creator.[xxv] Bargaining between rights holders and potential users can be described as a form of bilateral monopoly meaning that the transaction costs of bargaining are extremely high.[xxvi] Coase argued that the second goal of the legal system is to provide the proper legal mechanism to improve the likelihood that the most highly valued use will be achieved.[xxvii] Presently, however, the placement of entitlements and interpretation of scope are backwards. If memes are the more socially valued use and permitting their use is more efficient, then the legal system should recognize this and award entitlements accordingly. Such high transaction costs prevent bargaining from occurring at all and lead to a chilling effect. The grant of monopoly-like rights to copyright holders prevents bargaining. The nature of memes—fleeting, commonplace, and minimal use of copyrighted material— also prevents bargaining from occurring. The entitlement granted to the rights holder is too strong; the remedies for infringing uses are too expensive and complex, leaving no efficiency justification for the continued pursuit of meme artists.
[i] Kelsey Skager, What are Memes & Can You Use Them in Marketing? (The Ultimate Meme FAQ), Quality Logo Products (Mar. 29, 2013), http://www.qualitylogoproducts.com/blog/7-things-marketers-should-know-memes-faq/.
[iii] See generally, Taylor Bussey, “You Got Too Much Dip on Your Chip!” How Stagnant Copyright Law is Stifling Creativity, 27 J. Intell. Prop. L. 277 (2020).
[iv] Maxwell L. Stearns, Todd J. Zywicki & Thomas J. Miceli, Law and Economics: Private and Public 23 (West Academic Publishing 2018).
[vii] Deidrè A. Keller, Recognizing the Derivative Works Right as a Moral Right: A Case Comparison and Proposal, 63 Case W. Rsrv. L. Rev. 511, 523 (2012)
[viii] See, e.g., Lee J. Matalon, Modern Problems Require Modern Solutions: Internet Memes and Copyright, 98 Tex. L. Rev. 405 (2019); Terrica Carrington, Grumpy Cat or Copy Cat? Memetic Marketing in the Digital Age, 7 Geo. Mason J. Int’l Com. L. 139 (2016).
[ix] See, e.g., Instagram @wj_simmons and @teenagestepdad.
[x] This article assumes, for the purposes of the argument, that screen grabs from audiovisual media are protected by copyright.
[xi] See Diana Bradley, 5 Brands Insert Themselves into the Viral ‘Distracted Boyfriend’ Stock Picture, PRWEEK (Aug. 30, 2017), https://www.prweek.com/article/1443244/5-brands-insert-themselves-viral-distracted-boyfriend-stock-picture; see also, Skager, supra note i (“As brands shift their marketing strategies to be more relevant, many have both successfully and unsuccessfully incorporated memes into their marketing.”)
[xii] See, e.g., Skager, supra note i.
[xiv] See Gordon Whitson, How a Brand Name Becomes Generic, The New York Times (June 24, 2019), https://www.nytimes.com/2019/06/24/smarter-living/how-a-brand-name-becomes-generic.html.
[xv] See 35 U.S.C. § 102(a) and (b).
[xvi] This ignores harms to brands as a whole, as that harm is not directly to the IP rights associated with copyright protection.
[xvii] See Skager, supra note i (“Of course, the internet is a large place, which means tracking down every instance of a copyrighted image being used can sometimes be like searching for a needle in a haystack.”)
[xviii] Caitlin Dewey, How Copyright is Killing Your Favorite Memes, The Washington Post (Sept. 8, 2015), https://www.washingtonpost.com/news/the-intersect/wp/2015/09/08/how-copyright-is-killing-your-favorite-memes/?noredirect=on.
[xx] Brinton Resto, How Much Does a DCMA Takedown Notice Cost?, Minc Law (Sept. 25, 2020), https://www.minclaw.com/dmca-takedown-notice-cost/.
[xxi] Adam Hayes, Cost-Benefit Analysis, Investopedia https://www.investopedia.com/terms/c/cost-benefitanalysis.asp (last visited Mar. 21, 2021).
[xxii] Keyboard Cat Wins a Settlement with Maker of the Game “Scribblenauts”, THE SPOKESMAN-REV. (Oct. 1, 2013), https://www.spokesman.com/blogs/officehours/2013/oct/01/keyboard-cat-wins-settlement-maker-game-scribblenauts/.
[xxiii] See Dewey, supra note xvii.
[xxiv] See Stearns et. al., supra note iv, at 23.
[xxv] U.S. Const. art I, § 8, cl. 8.
[xxvi] Will Kenton, Definition of ‘Bilateral Monopoly’, Investopediahttps://www.investopedia.com/terms/b/bilateralmonopoly.asp (last visited Mar. 21, 2021).
[xxvii] See Stearns et al., supra note iv at 23.