Category: Culture

Don’t Mourn for the Memes Just Yet

Over the weekend, a photograph taken by Jesco Denzel went mega-viral. Ultra-viral? Really really viral? Whatever. It killed. You must have seen it. It depicts leaders of the G7 nations, headed by German Chancellor Angela Merkel, in a composition that seems to suggest the adults of the world are schooling a petulant-looking Donald Trump. But I don’t mention the photograph to comment on the President or about his administration’s posture regarding international trade. I mention it because by now, the image has been “memed” dozens or hundreds of times; and although any number of these derivative images may be amusing, I have to question the extent to which they are particularly important.

Consider what I assume to be a favorite version among Trump critics: the one that shows the President seated in a high chair with a bowl of spaghetti overturned on his head. It’s funny. But what it actually says is also redundant to the way I think many people read the original Denzel photograph in the first place. What has the meme really added? A fleeting moment of comic relief soon to be forgotten amid the millions more to come? Or is it truly a substantive work of political satire that will have lasting, salient effect?

In context to this post, the meme version is not necessarily a fair use as a parody, if it were ever to be the subject of a copyright infringement claim. Without doing a whole fair use analysis, the fact that the spaghetti version merely emphasizes what the original says (at least to Trump’s critics) weighs against a finding of fair use in which the meme-maker parodied the work rather than merely used Denzel’s photograph to lampoon the President. But within that analysis lies a hint about the social and cultural value of memes in general.

Because the meme in this example adds almost nothing while potentially diluting the value of the original—both for the author and the viewer—we should not completely ignore what we lose in the digital age, when an important image is no longer allowed to simply be what it is for even a few hours before every prankster with Photoshop has to draw metaphorical mustaches on it. Though funny, the spaghetti variation of Denzel’s photograph is glib in contrast to the provocative quality of the original, which my friend, the photographer Doug Menuez, predicts may prove to be one of the truly important photographs in history.*

If it seems that I exaggerate the worthlessness of memes it is only to propose some counterbalance to the more general attitude that the social media meme is a medium of great value. And the reason I stress a more balanced view is that several stories have surfaced recently declaring that if the current EU plan to harmonize copyright law for the digital age passes as written, memes will be banned from the internet. So, aside from the fact that, of course, memes will not be banned, I’m not convinced society would lose anything if memes were either fewer in number or less-infringing in nature.

Specifically, this “save the meme” campaign is one of several lines of attack on the proposals in Article 13 of the European Commission’s strategy to create a Digital Single Market. This section outlines a mandate for platforms that host user-generated content to implement technological filters that identify and help remove infringing material from their platforms. Pirate Party Member of the European Parliament Julia Reda has labeled these technical measures “censorship machines” (of course she has), and this rhetoric has been echoed by the usual suspects EFF, Techdirt, et al as the latest major threat to the “internet as we know it.”

On that subject, I’d like to remind readers that the “Russian hacking” of American democracy via Facebook ads was a campaign based largely on memes. If you watched the hearings on Capitol Hill, memes are what Members of Congress presented to Zuckerberg as evidence of Russian-sponsored messages designed to foment and aggravate divisiveness among American citizens. So, not only would I caution against too ardently “saving the meme,” it seems increasingly clear that the more generalized agenda to save “the internet as we know it” cannot be taken too literally.

In a subsequent post, I’ll try to dig into Article 13 in more detail, but the general complaint being marketed as inevitable meme extinction assumes that any technical measure employed to filter the uploading of unlicensed content will not be able to detect fair uses. Consequently speech—potentially speech of great parodic significance—will be removed from the internet.

It’s a ballsy complaint coming from the same crowd that insists rightsholders must “consider fair use” before sending a DMCA takedown because they seem to think the user of a work should not have to “consider fair use” before uploading. I say this because these same critics assume, or at least promote the idea, that most meme uses of protected images are fair uses. In all likelihood, however, this is not the case. Most memes I see would not stand up to fair use analysis, so what the critics are really saying is that memes are just too important to lose, even if they’re infringing.

So, I would first reiterate that a very large volume of memes are less culturally valuable to society than they are financially valuable to the platforms. Second, these critics overstate the assumption that everyone who alters a photo to make a meme is engaged in a fair use—be it funny, poignant, cruel, or just Russian agents having fun. Third, and perhaps most importantly, if the so-called “censorship machines” were as hyperactive as the critics claim, these measures would invariably harm the interests of rights holders, advertisers, and any other party who benefits from licensed use of works on social platforms.

This suggests that perhaps nobody envisions “censorship machines.” In fact, if experience tells us anything in this regard, it’s that the anti-copyright, pro-Google “activists” start saying “censorship” and “break the internet” at the mere suggestion that any proposal should change the status quo. Hence the specifics are either still in development or are being purposely obfuscated by the critics.

As I say, I’ll do my best to get into the specifics related to Article 13, but in the meantime, I’ll summarize what I said to Washington Post tech reporter Caitlin Dewey when she predicted the death of memes in 2012: infringing protected works is not actually necessary to produce memes; authors of works produce all the time without infringing; it’s called being creative.

*I do not claim to know how Mr. Denzel feels about any of the memes of his photograph.

Cake Fight: SCOTUS Decision in Masterpiece Does Not Turn on Expression

Because I opened my big maw in December when the Supreme Court heard oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission, I feel compelled to follow up now that the Court has ruled. In a 7-2 decision, SCOTUS held that the Colorado Commission failed to meet the standard of “neutrality” when considering baker, Jack Phillips’s appeal to his First Amendment right of religious exercise by refusing to create a wedding cake for the marriage of Charlie Craig and Dave Mullins.

Subsequent to this widely-reported story, a Christian activist named William Jack entered three different Colorado bakeries, each time requesting cakes with anti-gay messages. All three bakers were willing to provide the religious designs Jack requested, but all three refused to include writing or specific design elements that directly maligned homosexuals. Jack complained to the Colorado Civil Rights Commission, and the majority opinion of the Supreme Court held that the Commission was correct in upholding the three bakers’ right to refuse Jack’s requests but that, by contrast, the Commission failed to apply the same, neutral reasoning when considering Phillips’s defense for refusing to make a cake based on his beliefs.

As indicated in my first post, this story intrigues me because, as a secularist, I am always interested in religious-freedom cases, and because Phillips’s particular defense entails religious exercise through artistic expression. While I have little patience for religious zealotry—let alone as an excuse for discrimination against anybody—I fully endorse the constitutional obligation that the state must remain neutral about religious beliefs just as it must remain neutral about my non-religious beliefs. Then, assuming we all agree that the state should never compel anyone, including artists, to express themselves, my earlier post engaged in a little thought exercise to consider whether, from a copyright perspective, a court could hypothetically consider Phillips’s cakes to be a form of creative expression.

This was to entertain two thoughts: first, that copyright at least provides the court with a legal rationale for considering “artistic expression”; and second, because I suspect the more this case rests on artistic expression, the narrower its implications should be. My own theory was that if certain cakes can be considered artistic expression, then a) the state can’t compel their making; but b) this case would provide very limited precedent for other proprietors to claim nearly any business activity as religious exercise. Though the first obvious exception would be wedding photographers, whose images are legally “expressive” because they are copyrightable.

Although none of the five written opinions mentions copyright (no surprise there), and the judgment itself does not turn on the issue of expression in a wedding cake, the creativity question does weave in and out of the deliberations. In fact, it is Justice Thomas whose opinion explores Phillips’s free speech claim, and which contains observations that might sound familiar to anyone who has read copyright opinions. For instance, he notes that we recognize non-literal artistic expression, thus:

“To determine whether conduct is sufficiently expressive, the Court asks whether it was ‘intended to be communicative’ and, ‘in context, would reasonably be understood by the viewer to be communicative.’ But a ‘particularized message’ is not required, or else the freedom of speech ‘would never reach the unquestionably shielded painting of Jackson Pollack, music of Arnold Schöenberg, or Jabberwocky verse of Lewis Carroll.’”

In this comment, Thomas disagrees with his colleagues’ contrasting the literal, written statements that the three bakers refused to make for Jack with the non-literal, potential for expression in Phillips’s wedding cakes. Further, Thomas writes the following passage, which could almost be an excerpt from an opinion of the 19th or early 20th century considering copyrightability of a new medium:

“Phillips takes exceptional care with each cake that he creates—sketching the design out on paper, choosing the color scheme, creating the frosting and decorations, baking and sculpting the cake, decorating it, and delivering it to the wedding.”

Except for the reference to delivery, Thomas’s finding evidence of creative expression in the various aesthetic choices and specific arrangements of materials is doctrinal in copyright law today. So, although the Court’s judgment in Masterpiece does not emphasize the issue of expression in a cake, I think the subject remains a question that has lingering implications with regard to the potential civil rights precedent inherent to this case.

The main point of contention between Justice Gorsuch (concurring) and Justice Ginsburg (dissenting) is whether the cake design actually matters at all. Ginsburg contends that Phillips refused to make a cake (the design of which had not yet been discussed) that he would have made for any wedding other than a same-sex marriage. Hence, he discriminated directly against customers in a protected class, and the cake’s design—artistic or otherwise—had nothing to do with his decision. By contrast, Ginsburg observes that the other three bakers refused to make specific designs, with literal messages, that they would have refused no matter who the customer was—hence, they were not discriminating against Jack for his religious views.

Justice Gorsuch disagrees, contending, “In both cases, the effect on the customer was the same: bakers refused service to persons who bore a statutorily protected trait (religious faith or sexual orientation). But in both cases the bakers refused service intending to honor a personal conviction.” I admit that’s a head-scratcher. In my view, Gorsuch’s refusal to see the distinction is where his opinion may provide some precedent for a future party to claim “religious exercise” as a rationale for circumventing public accommodation laws protected by the 14th Amendment. But this would seem to depend considerably on whether Phillips’s cake is in fact expressive despite its being non-literal.

Clearly, the other three bakers scorned the explicit messages Jack had requested and not his religion. In fact, I believe there is no evidence indicating that those three bakers are in any way hostile to Jack’s religion. For all we know, they may even have some denominational kinship with him, but so what? If another atheist asked me to ghost write an article denouncing all religious people as pedophiles, I’d refuse the assignment because the requested content is patently offensive and dumb.

Similarly, if a customer whose religion, sexual orientation, even race or gender, is unknown to the proprietor when he/she enters a cake shop and asks a baker to design a cake with minstrels on it, isn’t the baker allowed to say he doesn’t feel comfortable complying—even without knowing anything about the customer as an individual? Of course he is. The minstrels are a literal form of expression with meaning filled with racist connotations.

By the same token, Phillips is entitled to refuse to design a wedding cake he would consider inartistic, even at the request of the most devout, Bible-thumping, gay-bashing, Christian couple ever to take their vows. Correspondingly, then, Justice Ginsburg’s dissenting opinion is well-reasoned: that Phillips’s refusal even to discuss a design with Craig and Mullins was predicated solely on his knowledge of their sexuality. But that reasoning would appear to be undermined if all of Phillips’s non-literal wedding cakes, even those not yet designed, were assumed to be expressive.

Claiming Artistic Expression

Of course, the harder Phillips clings to his claim of being an artist, the more he must play by the artist’s rules. One of these rules is that once the creator makes a work, he has little control over what the observer will think of the work, least of all whether the observer will recognize anything related to what the artist felt while making it. If an equally-skilled baker made masterful cakes while thinking about the various ways science debunks the Bible, would a reasonable observer be able to tell the difference between the religious cake and the irreligious one?

That’s the part where Phillips is trying have his cake and…y’know. His assertion that his wedding cakes are an artistic expression rooted in his religious faith is perceptible only to him and not to the dispassionate observer of the cake by itself. Thus, when Justice Thomas refers in his opinion to the symbolism of wedding cakes in general, this may be true, but it does not seem relevant to support Phillips’s very narrow claim that each of his wedding cakes is specifically an expression of his religious beliefs. Mindful that Phillips has no doubt made cakes for couples who’ve transgressed against a wide range of Scriptural doctrine, once a work of art is out there, the observers decide what, if anything, it “means.”

Still, as a copyright advocate, I find it hard to completely dismiss Phillips’s claim for the simple reason that copyright itself assumes a metaphysical relationship between the author and the work. If indeed there is some invisible—often hard to define—bond linking the creator’s mind, heart, soul, and body to the final artistic product, then we have to accept the creator’s own understanding of that bond, whether it’s religious, sacrilegious, intellectual, emotional, or even insane.

The unaddressed aspects of this judgment leave us with the paradoxical discussion that the state does not get to determine what constitutes a sincerely held belief, and neither does it get to judge if and when a belief is felt by an artist to be an inspiration for his expression. And other than the statutory confines of copyright law, the state also has no business determining what is and is not “creative expression.” For better or worse, the Court in Masterpiece alluded to but did not answer any of these questions. Though I sincerely doubt society is done asking them.

Photo by topnatthapon

Recap Post — Too Much Going On!

Here’s an overview of stories to watch, including some I’ll be posting about soon:

Senator Wyden Pitching ACCESS to Recordings Act

In a post on Medium this week, Senator Ron Wyden (D-OR) presented his proposed ACCESS bill as an alternative to the CLASSICS Act that is, as he puts it, “a better way to protect recording artists.” Notably, the Senator is not able to name any recording artists who seem to agree with him, but he does name endorsements by libraries and archives, who never recorded any hit songs before or after 1972. “Artists deserve to be compensated for their work, but at the same time, we shouldn’t lock up ideas for decades after the creator has passed away,” writes Wyden.

Neil Turkewitz very quickly seized on that theme and countered that the Senator is emphasizing a false narrative that copyright inherently makes works unavailable. Indeed, even in the arcane theoretical areas in which this criticism might warrant discussion, it has no relevance to the sound recordings at issue in this story because they are widely available. In fact they’re played all the time, which is why the artists feel they should be compensated. As I’ve stated, ACCESS cannot be a good-faith proposal at this stage in the legislative process because it’s too fraught with problems to be adequately debated between now and the mid-terms. Thus, whatever Wyden is up to, it isn’t proposing an “alternative” bill.

SCOTUS Rules on Masterpiece Cakeshop Case

It’s not a copyright case, but it is a story I commented on last December when the Supreme Court heard oral arguments because it involved a claim of artistic expression. This week, the Court ruled 7-2 that the Colorado Civil Rights Commission did not reflect reasoning that was neutral to baker Jack Phillips’s claim of religious exercise in his refusal to make a cake for a same-sex wedding celebration. Apropos my first post on this subject, the holding by the Supreme Court did not actually turn on the issue of creative expression in a wedding cake, but the various opinions do allude to the subject. A post in the works to follow.

Vienna Court Says YouTube Liable for Third-Party Copyright Infringement

Yesterday, it has was reported that the Vienna Commercial Court held that YouTube can be held liable for hosting copyright infringing content uploaded by its users. If this ruling stands, it would have huge implications for both the internet industry and copyright owners. To the “digital-rights” groups, the implication would of course be the death of the internet itself, whereas my colleagues and I tend to think it would be more like the death of the internet “as we know it.” And maybe that’s okay since I remain unconvinced that the internet we know is the internet we should try to preserve. Meanwhile, I will try to find the actual court opinion from the Austrian court.

The State of the Techlash?

On the subject of preserving the internet we know, the techlash is still lashing away. Granted, there’s so much staggeringly crazy news breaking all day long, it’s hard to notice, but Facebook’s woes continue unabated, with user data still springing leaks and the FTC pressing forward with its investigation into possible violation of 2011 consent decrees. And this week, we read reports that Congress is now investigating the likelihood that the social media giant may have shared user information with a Chinese company that U.S. intelligence agencies consider a national security threat. And that’s just Facebook.  See also Will Buckley on Silicon Valley’s Collateral Damage.

New York Proposes New Right of Privacy & Publicity Law

In March, a New York Court of Appeals ruled that a digital avatar of a real person can be considered a portrait. Take-Two Interactive prevailed in the case in which Lindsay Lohan sued for use of her likeness in one of their games, but judgment was based on the fact that the likeness apparently did not resemble Lohan. Still, the precedent decision that an avatar can be considered a “portrait” is significant, and this week the New York State Assembly introduced a bill designed to protect the publicity and privacy interests of individuals with “digital replicas.” This proposal primarily affects recognizable figures like models, actors, and professional athletes, but it has some interesting implications I’ll try to explore in a future post.