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.
I read Mediated, by Thomas de Zengotita. Twice. I’m still not certain what it really means to “be mediated” in the sense he addresses, but I have a guess.
Mediation is the layer of technology between the self and the world. It is the prism through which reality refracts and determines how we see the world, broken into a spectrum of its parts. It is the difference between taking a photo by looking at the scene you are photographing with your own eyes as you set off the flash bulb, looking at it through the small viewfinder of a disposable camera, or looking at the screen of the digital camera. I like the image of the screen of the digital camera because that is looking not at what you see, but adjusting to what the technology sees. It is placing the perception of the technology above your own perception. To be mediated is to see the world in the terms limited, guided, and directed by technology. It is to understand our relationships in ways that we can explain to our technology. It is to see ourselves in ways that connect to our technology.
Perhaps “mediation” is the extension of the idea that “we shape our technology, and then our technology shapes us.” If this is anything close to what the term means, it is a good term to explain why law—and IP law in particular—is so important to re-evaluate often. As technology changes, we change. If we change, the specifics of our laws must be tweaked and fine-tuned. IP law is concerned with governing the interaction of ideas with the market. If my understanding of de Zengotita’s Mediation thesis is even close, it follows that technology bears on both how ideas are managed as well as the sorts of ideas that a society imbued with a technology produces. IP law, then, is always already mediated. The law is not a response to technology in the way that a person responds to a question, but it is inside the technology in the way that an oak is inside an acorn.
A debate arose in class concerning whether an electricity company was responsible for delivering a service or a product (“electricity”) to its customers (because products and services are sometimes regulated differently). I liked the question for several reasons. As my science-degree-holding brother noted, there is a scientific fact of the matter as to what electricity is: alternating current is the oscillation of electrons. You are not getting new electrons pouring into your house, but having energy put through electrons in the wiring. General, the expenditure of energy is considered a service. However, we can quantify electricity (in Kwh, for example) in a way that allows us to talk about it in the way we talk about solid, tangible goods.
The takeaway isn’t about whether electricity is a good or a service, but this issue can be reasonably debated. It is also important that the science of the matter does not determine the law, and Oliver W. Holmes explains why in his adage, “The life of the law has not been logic; it has been experience.” Law is an odd, swirling mix of logic, language, and science on one hand with anthropology, sociology, ethics, and emotion on the other.
My core interest is how the law can meet the emerging technological issues of the 21st century. It is clear that, as in the debate I described, the science of digital technologies alone is not enough to dictate the law that governs it.
If culture evolves and science expands, the law cannot remain stagnant.
For a different view on the relationship between science and the law, I recommend this presentation:
Art can be at odds with law at times. The law is the essence of order and structure, in the tradition of Apollo. Art, especially in the last 50 or 75 years, has something rebellious, chaotic, and even destructive or reconstructive about it—it smacks more of the orgiastic tradition of Dionysus. Yet the law sees a need to protect art. In the US it does so through both constitutional free speech provisions as well as through copyright protection.
What makes art powerful? Art takes the small pieces of our lives that we don’t notice or don’t want to think about and magnifies them for us. It helps us (or compels us) to see what we don’t [want to] notice. Art is necessarily always a little closer to the edge, because its function is to explore those fringes and bring back to us the parts of ourselves and our realities that we omit. It is easy to be afraid or critical of art in society because if it is done properly, it brings us face-to-face with some truth—and that can be an uncomfortable experience. From the protest songs of the 1960s to the Gothic Architecture of the high Middle Ages, art has felt a need to express the feeling of a generation distinct from its predecessors; art is forever dabbling in change, shift, exploration, progression (even if through regression), or rebellion or some sort.
How can something rebellious and chaotic be protected by order and law? Why should it be? Perhaps it is because the law sometimes understand its own need for growth and transformation—a need to endure through flexibility rather than to break as a thing brittle and rigid. Perhaps art both crafts and chronicles the human condition and our human experience. Inasmuch as “the life of law… has been experience,” it is entirely fitting that art and law be friends.