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?”