It’s called being creative. On memes and copyright.

I feel a little bit bad picking on Washington Post tech writer Caitlin Dewey as much as I have already, but it’s probably not as much as I would if I read her column with any purposeful frequency.  Unfortunately, given the subjects I write about, people like to send me links to her articles. And I read them. And then the voices in my head start yelling because she’s said something deeply ill-considered in a high-profile newspaper. And then typing happens …

So, one of Dewey’s recent observations concerns the possible extinction of “our favorite memes” from the Internet thanks to copyright enforcement by owners of the rights to the underlying images on which said memes may be based.  Specifically, she cites what is supposedly an Internet legend known as Socially Awkward Penguin, which originated on 4chan (snort-laugh).  The meme features a copyrighted image of a waddling penguin, originally captured by veteran photographer George Mobley, which has been remixed and repurposed to produce various funny (or not) aphorisms on the theme of awkwardness.

Now, I certainly won’t disagree with Dewey that the meme is a perfectly valid form of expression, though how much cultural importance we can ascribe to the medium, I suppose, depends very much on each meme and the context in which it is used.  For instance, I think I’m all set with the constant repurposing of that screen-grab of Gene Wilder flashing his Willy Wonka smirk as the predicate to every sardonic comment anyone cares to convey on any number of issues. And that gets to the real point about any expression, which makes use of existing material:  it doesn’t necessarily need to. And, guess what happens if, say, a meme maker respects the rights of the owner of the original work?  He or she communicates the same idea in some other way.  It’s called being creative.

Anyone who creates stuff will tell you that being forced to work around an obstacle — like not boosting someone else’s work — almost always produces something better than what was first imagined because the new work becomes a legitimately new expression. And this is likely to be just as true with a meme as with any other medium.  I’ve written about this theme before and have also cited a relatively recent work of scholarship called Working Around Copyright by Joseph P. Fishman at Harvard Law School.

The assumption made by those who’ve grown up with what they think is a new idea called “remix culture” is that creativity depends on unlimited use of existing works. But if SAP (Socially Awkward Penguin) was destined to become part of the digital-age vernacular, then there’s no reason to assume that this form of shared expression would have been diminished if the originator of the meme had taken inspiration from Mobley’s image rather than taken the image itself. Hence, the assertion that copyrights “stifle creativity” is an oxymoronic claim because the author who derives, works around, and creates anew will always be more creative than the author who copies and pastes.

Now, the legal story Dewey cites in order to justify the misleading headline saying that our favorite memes are being killed by copyright involves Getty Images, which manages the rights for Mobley’s original penguin photo.  Dewey writes, “In the past year, the company’s licensing agency, Getty Images, has ‘pursued and settled’ multiple infringement cases involving Socially Awkward Penguin, it confirmed to The Post. All of those actions were carried out in secret, with blogs and other posters agreeing to non-disclosure.”

We’ll get to the “secret” part in a moment, but suffice to say, one of these sites, German-based getDigital agreed to take down posted SAP memes from its blog and pay a back-dated license fee, but they refused to remain silent on the matter. Instead, getDigital published a blog post about its settlement with Getty, and this post is apparently the foundation of Dewey’s article.  From the big picture, we are meant to conclude that 1) Getty is randomly cherry-picking little sites who can’t defend themselves, which is meant to seem silly given the ubiquity of SAP on the web; and 2) that there is something truly sinister in that condition of silence regarding the settlement.  But as is so often the case when it comes to the Internet and copyright, commentary like this is predicated both on a misunderstanding of the law as well as an implied wishful thinking that it should work differently from the way that it does.  In addition to providing shoddy reporting on the actual issue, this also does a disservice to any site owner or blogger as to what they should and should not be posting.

So, to try to clear up the first part of the confusion in this story, most of us encounter memes on social media sites like Facebook. If we like them, we share them, they go viral, and it’s all a bit of harmless fun.  The reason Facebook is not liable for any infringement in these cases is that the site is protected by safe harbor provisions in the DMCA. These provisions — although they are often applied in a manner in which they were never intended — presently shield a site like Facebook because all or most of the content is uploaded by the users.  But these safe harbors do not apply to a publisher of content on his/her/its own site.  So, if the New York Times, which has editorial control over the content on its pages, publishes a Reuters photo without proper licensing, the NYT is liable for direct infringement of that photo.  Hence, this same rule applies to any site on which the owner controls the content, which would include the blog of getDigital, or even this blog because it is not a platform for UGC (User Generated Content). So, a rights holder like Getty will only go after sites on which the owner controls the content, and a lot of the big publishers know better than to infringe.

Moreover, people need to understand — and Dewey makes this mistake in her article — that money has nothing to do with it!  As mentioned in this post about a friend who found herself in some trouble with a photographer, it doesn’t matter if the use of a work is in any way related to commerce or revenue for the site owner that uses the work.  While commerce may indeed influence the remedies sought by a claimant, money has no bearing whatsoever on whether or not a work has been infringed.  This  is one of the most common misconceptions out there, and it has only been exacerbated by the apparent “freeness” of the Web.  I say apparent because none of this Web stuff is free; it’s just that most people don’t pay attention to the nature of the trade that is happening (but that’s another subject).

As for the settlements between Getty and any site owners, I recognize that secret is a truly dirty word in this age when people have convinced themselves that the Internet provides transparency, but non-disclosure is a pretty mundane, standard practice when settling civil cases of this nature.  The plaintiff agrees not to sue — that’s what a settlement is — but it is in the plaintiff’s interests not to publicly reveal the terms of the settlement for any number of reasons, namely that its right to negotiate with a future defendant not be affected by the terms of prior settlements. With an entity like Getty and a case involving visual media, it’s not exactly like settling with a medical device company that demands silence about some negligence causing physical harm.  That’s nasty stuff.  But this is not that kind of “secret.” It’s just basic practice in many areas of civil litigation; and if you were a plaintiff, you’d probably want the same conditions.

I know there is a lot of noise about rewriting copyright law in the age of the Internet, but it is patently absurd to expect — and self-defeating to hope — that such revision would result in such a shapeless body of law as to condone the free-for-all we perceive the Internet to be and perhaps even think should persist.  But neither the interests of commerce nor those of creative expression are particularly well served by this agenda; and perhaps tech pundits who presume to comment on copyright issues should first get their facts straight before once again claiming that some favored form of expression is being “killed” by this body of law. The meme, for better or worse, can continue to amuse, inform, annoy, or even misinform for years to come, and it can coexist with copyright even without revision. And we’ll all be just fine.  It’s called being creative.

On a side note, Getty does make many of its images freely available to embed as shown above for publishers like bloggers.  What do you think, “Sound of Music Penguin?”

© 2015 – 2016, David Newhoff. All rights reserved.

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11 comments

  • There’s got to be a middle way. Isn’t that what Lessig’s Creative Commons movement is all about? Shouldn’t the artist or creator – not necessarily the rights holder (i.e. corporate interests, Getty, Disney, lawyer mindset etc.) be able to decide at some point to release a work into a Creative Commons license if it suits their agenda (commercial, social, political)? DMCA, “fair use” and other nuances notwithstanding, don’t you think there is still more work we can do to make content accessible – if not steal-able in the best Austin Kleon sense – to the global electronic village?

    Rather than advocate for or against the traditional status quo, shouldn’t we be searching for new mechanisms that recognize how media culture (creation, distribution, consumption) has changed, and how we can encourage creativity, whether it is UGC, or original?

    Yes, Dewey’s syllogism is ridiculous, but I think reflects a frustration from the playground that everyone wants to have fun. There has got to be a way to still have fun, and to respect authorship (not necessarily copyright, which has become, unfortunately, a cudgel as much as a protection).

    Thoughts?

    • JT –

      Thanks for writing. And here are a few thoughts: In particular, when a professional licenses his work to a stock library, he/she generally retains his interest in the work, so a company like Getty is representing the photographer’s interests. It is in fact one way image creators protect their interests — through the muscle of the corporate entity — so there really is no separation between, say, George Mobley’s interests and Getty’s in a case like this. If a photographer chooses to use a CC license, that’s his choice, but the key word is “choice,” not a mandate that all creators must submit to the Internet playground whether they like it or not. And, in fact, Austin Kleon is very erudite on the subject of “stealing” around the boundaries of copyright, not in spite of them. His blackout poetry is a great example of this; he creates something new through appropriation but does not infringe.

      I get the frustration, but it’s part of the reason I wrote this response. Because I think the frustration is, in part, the result of habit, some of which may be fun, but would not necessarily be diminished without chronic infringement. As to whether or not there is a legislative “solution” to the apparent need for balance, the funny thing is that probably implies a more complex (rather than less) legal framework. Instead, with something like creating a meme, there is so much legally free material, and so much cheaply available material, that it seems the fun doesn’t have to stop. Meanwhile, if site owners like getDigital would simply learn the basics of their responsibilities with regard to copyrights, and pundits like Dewey would not spread bad information, people might realize that we have a fair bit of balance right now that may be preferable to a revised set of laws.

    • What’s fun got to do with it? We’re talking about protecting our rights as artists, and also protecting our living. If someone uses something I created, i want paying for it. I’m sure JT has a job and gets paid for whatever he does. Perhaps he should try working for free to see how it feels to be ripped of. All this stuff about a new media culture etc is just the garbage that companies like Spotify and Youtube want you to believe so they can make money off the backs of the artists they use. For musicians, ASCAP is doing a good job by talking the issue to Congress.

      • Please don’t flame me without cause. First, it doesn’t matter what I do or don’t do to earn a living. Second, “entertainment” is supposed to be “entertaining.” That is what “fun” has to do with it.

        You paint with a very broad and dismissive brush, and I gather that you have had a hard time getting traction for your creative work, I have been on all sides of this business for a very long time and have experienced ups and downs. Your rant does nothing to move the needle. Memes and fair use are a fraction of the issue of fair compensation, rights and royalties. At least today you can actually publish content and get discovered. In the pre-digital era, that was impossible, and artists had no information, no internet and no way to avoid getting ripped off in ways that robbed them of entire careers. If you had been around then, you would be grateful for today’s world…lol.

        Focus on loving what you do, and on connecting with your audience. If you are good at what you do, genuinely work hard, and make that connection, you will find a way to make it work. Bitterness will invariably finds its way into the work, and the results aren’t good.

      • I’d like a point of clarification on something that comes up all the time: What do you mean by “digital music?”

        Digital as in CDs? The ’80s?

        Or digital as in mp3s, and more specifically P2P? Circa ’99.

  • A meme is someone simply adding a caption (often copied from some other meme) to someone else’s photo. Without the photo there would be no meme. Without the meme, there’d still be the photo. The photographer should definitely be credited on these meme posts, regardless of how they are used and where they are posted. Additionally, if these memes are posted on blogs that make money, well it’s only fair the photographer ALSO make some money! It takes all of 2 seconds to add a marginally humorous caption to an existing photo.

    • Sara –

      Thanks for your thoughts. I think the important part you’re skipping is that the author of a work has the right to decide how, when, and where it’s used regardless of money or credit. This seems inconsistent in the age of the Internet, but I don’t think so. To the contrary, while the meme may seem like a good time for all, it could be quite damaging to the creator. If Mobley, for instance, were a young photographer living on the already diminishing value of licensing his photo as a stock image, its potential use will be completely obliterated by a popular meme changing its context. What science text, for example, is going to choose the penguin shot that became Socially Awkward Penguin on the Internet? None. They’ll choose another image. Why does the creator of an image have to accept that fate for his work because the crowd has decided he/she must?

  • JT – the “pull up by your bootstraps” meme is tired and just doesn’t work anymore. I remember the pre-digital world, and while it’s true that some creators got ripped off, it is NOTHING like the way things are now. If the record and publishing companies were corrupt, now we’re in kleptocratic Russia.

    Selling the “work hard and people will pay for your creations” meme – telling people to compete over digital pennies – while big tech companies are making billions of dollars is not just naive, it’s immoral

  • This article is simply ridiculous. It’s not about money? Of course it is. Getty (and other stock photo companies) are shamelessly abusing copyright law to make money off people who made honest mistakes with regards to using a copyrighted image. No honest publisher would ever knowingly infringe. Since Getty is able to use automated methods to both identify AND communicate with owners of domain names then Getty could just as easily make the automated communication akin to a cease and desist. The same automated system could check a couple weeks later to see if the image was gone. If not, then go ahead and ask for money.

    That would be a far more just system. As it stands, however, Getty knows that they can extort money from people who don’t have the means to defend themselves in court. It’s shameless and disgusting and flies in the face of what copyright is all about.

    • David, thanks for your thoughts, but you misunderstand the money part in the article. I am criticizing Caitlin Dewey’s mistake, which is a very common one, in assuming that if a use is non-commercial, it’s necessarily non-infringing. Commercial v non-commercial is a consideration in a fair use defense in an actual litigation, but it is not an automatic free pass on use by any means. The post is largely criticizing Dewey’s “death to culture” tone vis-a-vis memes, and her mistake about non-commercial use in consistent with her attitude.

    • The problem is that photos that are used for memes are exploited commercially. There are sites set up to make it easy for people to add text around an image. These sites have adverts surrounding the pages that let people add the text, and pages around images that have already been textified, they may even add their own site name to the image. These sites are commercial. Secondly the memed image is then added to another commercial website, like facebook, twitter, pinterest, LiveJournal, and and a myriad of web forums which may themselves be commercial. That someone has created an image that people find useful for conveying some thought is no reason for it to be made available for 100s of companies to extract value from from.

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