Who Owns That Meme? The Answer Is All Over The Internet
A look into how copyright laws may or may not be applicable to memes, which normally use an existing image without any consent. The question is a reminder of how the Internet has changed the basics of communication and commerce.
BUENOS AIRES — The meme — a composite picture or joke sent out online — is typically meant to be funny, but can also be seen as a particularly modern and sometimes powerful form of communication. At their best, memes ingeniously sum up an event, a life situation or predicament, breaking down perception barriers with minimal explanations, thanks to the creator's wit.
The meme idea emerged in the scientific world — and not as a joke — and its dynamics may yet deserve a scientific study. Why do some go viral while the vast majority simply disappear? There is certainly little organization in the distribution and evolution of memes, which thrive not on word-of-mouth but on clicks.
Argentine public law specialist and law professor Gustavo Arballo cites two parts to the ownership issue: the creator of the meme and those sharing them.
In principle, he says, memes are within the provisions of the Argentine Law 11.723 (governing intellectual property), for using material already subject to property rights (a company logo, for example). Reuse of such material "should have the permission of the original rights holder. As habitually this does not happen, [the owners] can oppose its spread and take legal action," if they see harm being done to their interests, he says.
Arballo says "Think of a photo made into a meme. This can be objectionable to the person depicted in terms of... his own image, or to [the rights owner of the original] photograph." Memes may use works in the public domain, such as pictures of national figures, or previously obtain usage permission, which precludes problems.
The meme's author could register it, though ownership only applies to that particular version,
In such cases, says Arballo, "the meme's author could even register it as his or her work, though ownership only applies to that particular version," he says. The creator however acquires no rights over the image used in the meme and could not prevent other "memesters" from using it.
The second issue concerns usage, which Arballo says is "wild and natural" when a meme goes viral. Usage, he says, is impossible to control online for being "dispersed and massive" in scale. Still, a creator with the foresight to register his or her meme "can have incentives (and reason) to make claims in specific and documented cases of large-scale and profitable exploitation" of that work.
The famous "This Is Fine" meme.
Free expression, brand rights and AI
In 1936 (or 1935), Walter Benjamin wrote The Work of Art in the Age of Mechanical Reproduction, a reflection on how cinema and radio were changing people's experience and understanding of works of art. Art, he observed, was being democratized and made accessible, but was also losing authenticity and singularity. It was already prone to manipulation by the powers of the time, though then as now, debates pitting property and personal rights against creative freedom were not without their complexities.
While some wonder whether we are at all ready to process the constant innovations of our time, others insist technological change has been a constant of civilization. Lawyer Mariano Municoy says certain countries have chosen to apply 19th-century laws to regulate emerging realities, which means "we have to decide how such laws are applicable and what their limits are. Then you have matters that escape regulation. Memes are in principle subject to copyright laws, but only if created by people. What if AI starts generating memes?"
Argentina, he says, currently had no regulations on the use and modification of existing works for artistic, humorous or satirical purposes. Spain in contrast has introduced a (2021) Pastiche law to regulate the online manipulation of images as memes do. The law allows one to take elements of an artist's work and modify or combine them without the author's authorization, "provided there is no risk of confusion with, or harm being done to the original work or provisions."
He mentions another issue: What happens if a person uses a firm's image to criticize it? This is already common on social media and in works of art and, says Municoy, "freedom of expression would take precedence in that case." Andy Warhol's Campbell soup pictures, and Antonio Caro's Colombia-Coca Cola from 1977, which mocked consumerism, were examples.
But brands also have rights, he says, as shown in the Hermès vs. Rothschchild case, where the French brand took the artist Mason Rothschild to court, accusing him of robbing its designs to create NFTs (or non-fungible tokens, which are digital assets). The artist lost, as the court found his use of Hermès bag designs to be intentionally deceitful. Could such cases become precedents for memes?
Are we all artists?
Meme, as a word, precedes the internet. Coined by the biologist Richard Dawkins, it relates to imitation and repetition as mechanisms for spreading a concept in a community. Tomás Balmaceda, a young philosopher interested in how science and ideas interact, describes memes as "perfect vehicles to summarize ideas and complex points of view, with the ability to convey different, even contradictory, voices and perspectives."
The value is in the response of users, rather than its mere existence
Balmaceda says memes are digital contents that are "transformed and intervened communally," and unlikely to constitute property. They are, he says, "the fruit of collective intelligence (or lack of intelligence) on the net," coming in many or evolving forms, with different purposes.
The meme's value, he observes, is in fact in the response of users, rather than in its mere existence. "It confirms itself on the basis of its reinterpretation and reappropriation, either through digital interventions, or segmentation or repositioning in other chains of meaning," Balmaceda says.
Viral memes — like the This is Fine image on social fatigue — are those able to catch the mood of their time. Their originality lies in a moment's inspiration.
A photograph of András Arató which became an internet meme: Hide the Pain Harold
András Arató is a Hungarian engineer who was shocked to find himself turned into a massive meme, years after being photographed for other purposes. He was upset initially to find his face alongside jokes he could not understand, and to have become the target of mean comments or doubts about his identity and existence. He could not recover his face from the Internet.
Thankfully, his intelligence found a partial solution. He 'came out' to reveal himself as the person in the meme, which reduced its malicious reuse. Instead, people began to stop him in the street, wanting selfies, and firms such as Coca-Cola contacted him.
It may not always end this way. Technology and hyper-connectivity may yet become the graveyards of privacy and the ownership of images, sentences, and views. Every digital footprint, as Balmaceda warned once, could one day turn you into a meme.
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