Memes: The Creative Culture of Web 2.0 Getting Around IP Law.

Internet-Memes are actually full of  interesting legal issues. They use someone else’s image (protected by copyright), and even sometimes a trademarked phrase, word, or design. The reuse of the image to produce a new work or commentary is arguably protected by fair use in most cases, which is probably one reason that there are not a slew of contributory copyright infringement or inducement of infringement  lawsuits against sites like memegenerator. But I have another theory as to why the rightsholders are not fighting the meme fad.

Companies go to tremendous trouble to ferociously protect their trademarks and copyrights. This presents obstacles to all sorts of visual art, musical creation, business enterprises, and so forth. The popularity of memes may have emerged because it is a way to create commentary and interact with media in a way that doesn’t get you cease and desist orders. No one will threaten a lawsuit if I post a “Good Guy Greg” meme with my own text, it is extremely unlikely that Greg (or his counsel) would write to me to take it down- and not just because he is a good guy. It would be a tremendous effort for a typical citizen to undertake- expensive and time consuming- to even try to fight such a battle.

However, not all memes are owned by someone unable to effectively enforce the relevant legal rights. Many memes, like Condescending Wonka and Unsure Fry, are based on Copyrighted Images owned by large companies with lots of resources to pursue legal action.  A great example of my theory is the meme “The Most Interesting Man In the World.” My theory is that Dos Equis made a savvy business decision: let the internet claim, remix, and play with this trademark. This is the best advertising model ever: let the consumers make, remix, post, and link your product and its symbol. (Remember, there is a bottle of XX on the table in each “Most Interesting Man” meme.) The trade-off that XX makes is that they cannot control the content of the text: it might be terribly racist, it might be anti-alcohol, it might condone war crimes, etc. Maybe Cervecería Cuauhtémoc-Moctezuma brewery decided that US 1st amendment protections would effectively immunize them from lawsuits about hate speech. Maybe they thought they could disavow any connection between their company and the message of the meme. Maybe they just figured the free advertising was worth the risk.

The bottom line is this: There is sometimes a tension between exercising legal rights and making smart business decisions. In the culture of the internet, I think successful businesses will hesitate to send out cease-and-desist letters in favor of letting their trademark or copyright be shared on a massive scale. This could signal an interesting shift from 20th century IP law to 21st century IP law.

The Difference Between Two Meanings of “IP”

IP is thought of differently by business people and legal people. For legally trained folks, IP describes the legal coverage that a creative company like EA would get for their produced videogames or artwork or logos. The annoyingly-technical lawyer might point out that ANYTHING that EA produces with a copyright or a trademark is “IP.” An attorney-robot (“lawbot”?) might say that “Battlefield 7” is a “New IP” for the company because it adds new value to the company’s IP Portfolio and would be covered by a fresh claim of copyright protection. I would have a good chuckle if EA releases nothing but sequels and follow-up materials for existing series of games and uses this argument to explain their move. I seriously doubt they will do anything of the sort.

Normal people (“not lawyers”) understand EA’s announcement to indicate the creation of new stories, new characters, new ideas, new art,- all unrelated to currently existing EA games. What is interesting is that stories, character-types, broad-level ideas, general design and architecture are all not protectable by IP laws. While EA will be able to protect their new box art, the exact images of new characters, they will not be able to protect anything much more broad than that. This is why I can comfortably predict that EA might release a game that looks and feels a lot like, say, Assassin’s Creed without concern that Ubisoft will succeed in a lawsuit against them.

Even after studying IP law, I still find it interesting that a studio can create a game that looks and feels just like a different game from a different studio without any legal issues. On one hand, it’s good that no one company can have the IP right to “First Person Shooters” or “Multiplayer Online Battle Arena” games. On the other hand, it is sometimes obvious to the consumer that one studio is just copying a successful game without much of their own creative input. I wonder if future generations of judges will be prepared to make legal distinctions on genres of videogames. In cases of alleged copyright infringement of music, judges listen to the two tracks to evaluate the similarities, and the US Supreme Court apparently played some violent videogames in conjunction with their ruling in Brown v. Merch Assoc.

This remains my favorite image on the subject, from


It would be preposterous to copyright the general image of “looking down an iron sight,” but as you compare these images and play this games, it’s hard to shake the feeling that creativity is stagnating here. While the law theoretically could step in and try to impose copyright, I think it would be better if developers just found the courage to create something new. Ideally, something new enough to be worth of IP Protection. We will wait and see what EA delivers.

The Premise is Always Implicit- So is Every Possible Premise.

Something that makes people suspicious about soft sciences is that they are largely constructed by observing some data and then crafting a story to explain what is observed. “Why did people vote this way in the election? Why did consumers buy those products? Why does this man feel an aversion to bodies of water?” What troubles some people is that there are often multiple plausible explanations for a poorly understood, vaguely or partially observed phenomenon.

The same troubling reasoning is the same reason some writing is unclear. Good (but not great) writers often omit their premises and get straight to the interesting parts of the argument, such as the conclusion or the response to the conclusion. They often feel that their basic premises are implicit within their writing, so it is a patronizing waste of time to explicate fundamental principles which seem obvious. However, while it is true that for any valid reasoning, the premises are always implicit in the conclusion, it is also true that all possible premises are potentially implicit until the field of premises is restricted and identified.

In claiming that “Abu should not have murdered Igor,” I may well be resting on premises that murder is morally and legally wrong. If Abu provided materials for Igor’s suicide, I may be further employing a premise that Abu’s actions constituted murder. It may seem so obvious to me that Abu murdered Igor that I jump to the evaluation of that action. The premise that Abu, in fact, murdered Igor may not be so obvious to my audience.

The trouble is that there are some premises that we take as so fundamental that they do not need to be explained or discussed. However, that set of fundamental axioms is slightly different for each of us. Conveying information (say, in the business world) can be difficult when we aren’t sure how much the audience/recipient already knows.