Steve Jobs always wanted Apple to be a large, powerful force. Mark Zuckerberg wanted a way for students at Harvard to know who was single and a way to make plans for parties. Some tech companies, products, and platforms, were made with an eye to global scale—but some weren’t. Because the internet has always been a collection of people forming communities, it has always had hallmarks of organic growth—specifically, it has always had surprising, unplanned successes. In many ways, the internet itself is something of a surprise, unplanned success: it went from a science project, to a nerd hobby, to a general luxury, to a utility. Unplanned success can bring a lot of problems. As the internet got popular, copyright law suddenly took on entirely new scope, meaning, context, and purpose. But just like some tech products and companies struggled under the weight of their own popularity, copyright law has struggled to bear the weight placed on it by an internet of creative, collaborative users.
Instagram is a cultural surprise (except perhaps to Jean Baudrillard) in and of itself, but it’s still surprising to read that the creators of memes are banding together to form a union. The underlying reasoning is understandable: these creators: 1) Make a living by creating content that is uploaded to Instagram, 2) Bring in significant advertising revenue to Instagram as a result of this content, 3) Have no kind of guarantee or assurances regarding Instagram’s behavior. It’s an incredibly interesting scenario that has happened with professional content creators: the overall structure of employment has happened without any agreement or discussion. I interpret the effort to unionize as an effort to formalize an informal, de facto employment.
There is one other very unusual wrinkle regarding this informal, organic employment: a lot of it is probably illegal, and almost no one takes that seriously.
Are Memes Legal?
In a TED Talk, Lawerence Lessig pointed out that remix culture that is so prevalent online is a violation of copyright law. Among other problems, he feared that the generation primarily involved with the creation of this media would develop a callous indifference towards the law as that generation became accustomed to ignoring laws that failed to keep up with technology and culture.
Memes function on the idea that a copyrighted work is a blank canvas. The problem behind remixes and mashups is that these new works use existing works of others. I don’t see the distinction between a meme and a remix, except maybe for two things: 1) minimal use, and 2) original additions. However, there are problems with both of these potential justifications for memes. The uses rarely qualify as minimal, and copyright law is unclear (at best) about what kind of original additions would be enough to allow the new work to be declared non-infringing.
Of course, it is possible to make a meme without infringing copyright: using photos from the public domain, or photos to which the creator also owns the copyright, for example.
Will Unions Like This Modernize Copyright Law?
This strange moment is exciting because it’s a moment of cultural evolution. The unionizing effort may or may not work out in this case, but that’s almost irrelevant to the larger picture. This is a significant step toward an internet that blends user-generated-content and ecommerce (arguably, two of the biggest buzzwords and applications for the internet from the ‘90s and ‘00s). It’s also exciting to see how quickly new media is commanding economic force. The concept of watching professionals play video games is still surprising and baffling to millions of people—while streamers and pros sign sponsorship deals with Fortune 500 companies.
The most exciting prospect is the effect that the increased economic attention could have on changing copyright laws. Copyright policy has really struggled to find a powerful force that advocates for user-generated-content accommodations. Indeed, the fiercest advocates for copyright policy have been major copyright holders (movie and music studios). Non-profit organizations have made noble efforts to present counter-arguments to the interests of the major copyright holders, but there has not been a concerted effort of content creators on new media to affect policy change. An Instagram Meme Union is a surprising starting point, but it might be a good starting point.