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NEW YORK UNIVERSITY

LAW REVIEW

OLUME

97 M

2022 N

UMBER

ARTICLES

MEMES ON MEMES AND THE NEW

CREATIVITY*

DLER

† & J

EANNE

C. F

ROMER

‡

* Timoth´ee Chalamet, Wes Anderson, Tilda Swinton and Bill Murray at Cannes, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/timothee-chalamet-wes-anderson-tilda-

swinton-and-bill-murray-at-cannes [https://perma.cc/PF2D-KC2A].

† Emily Kempin Professor of Law, New York University School of Law.

‡ Professor of Law, New York University School of Law; Faculty Co-Director,

Engelberg Center on Innovation Law & Policy. We thank Cynthia Adler, Arnaud Ajdler,

Audrey C. Ajdler, Eric S. Ajdler, Olivia E. Ajdler, Rachel E. Barkow, Sunneal Bedi,

Barton C. Beebe, John Berton, Mala Chatterjee, James M. Chen, Kevin E. Davis, Charles

Duan, Brian L. Frye, Kristelia A. Garc´ıa, Clayton P. Gillette, Patrick Goold, Laura A.

Heymann, Samuel Issacharoff, Amy L. Landers, Stacey M. Lantagne, Mark A. Lemley,

Florencia Marotta-Wurgler, Michael Meurer, Peter Nicolas, Sean A. Pager, Amanda Reid,

Harry A. Robbins, Elizabeth L. Rosenblatt, Jennifer E. Rothman, Matthew Sag, Pamela

453

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454 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

Memes are the paradigm of a new, flourishing creativity. Not only are these cap-

tioned images one of the most pervasive and important forms of online creativity,

but they also upend many of copyright law’s fundamental assumptions about crea-

tivity, commercialization, and distribution. Chief among these assumptions is that

copying is harmful. Not only does this mismatch threaten meme culture and expose

fundamental problems in copyright law and theory, but the mismatch is even more

significant because memes are far from an exceptional case. Indeed, memes are a

prototype of a new mode of creativity that is emerging in our contemporary digital

era, as can be seen across a range of works. Therefore, the concern with memes

signals a much broader problem in copyright law and theory. This is not to say that

the traditional creativity that copyright has long sought to protect is dead. Far from

it. Both paths of creativity, traditional and new, can be vibrant. Yet we must be

sensitive to the misfit between the new creativity and existing copyright law if we

want the new creativity to continue to thrive.

NTRODUCTION

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 456

I. C

OPYRIGHT ON

REATIVITY

, C

OMMERCIALIZATION

AND

ISTRIBUTION

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 459

A. Creativity Without Copying . . . . . . . . . . . . . . . . . . . . . . . . . 462

B. Morality and Economics of Copying . . . . . . . . . . . . . . . . 465

C. Profiting from Copyright . . . . . . . . . . . . . . . . . . . . . . . . . . . . 466

D. Idea and Expression as Distinct . . . . . . . . . . . . . . . . . . . . . 467

E. The Long Duration of Copyright . . . . . . . . . . . . . . . . . . . 469

F. Choosing Third Parties as Licensees . . . . . . . . . . . . . . . . 470

G. The Author’s Centrality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 472

II. M

EMES

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 473

A. Overview. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 474

B. Why Memes Matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 477

1. Newness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 479

a. New Content . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 480

b. Recontextualization . . . . . . . . . . . . . . . . . . . . . . . . . 481

c. Combinations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 482

2. Common Culture, Common Ground . . . . . . . . . . . . 483

3. Participatory Culture . . . . . . . . . . . . . . . . . . . . . . . . . . . . 484

4. The Attention Economy . . . . . . . . . . . . . . . . . . . . . . . . . 487

5. The Dangers of Memes . . . . . . . . . . . . . . . . . . . . . . . . . 489

C. Copyright Claims for Memes . . . . . . . . . . . . . . . . . . . . . . . . 492

Samuelson, Paul J. Sauerteig, Dalindyebo Shabalala, Jessica M. Silbey, Cathay Y.N. Smith,

Christopher Jon Sprigman, Madhavi Sunder, Naveen Thomas, Jacob Victor, Jeremy

Waldron, Joseph H.H. Weiler, Christopher Yoo, and participants at workshops at Drexel

University Thomas R. Kline School of Law, Michigan State University College of Law,

New York University School of Law, the Sixth Copyright Scholars Roundtable, the 2021

Intellectual Property Scholars Conference, and the 2020 Works in Progress in Intellectual

Property Colloquium for their attention-getting comments. Thanks to Siddharth

Anandalingam and Atreya Mathur for extraordinary research assistance. The authors

gratefully acknowledge support from the Filomen D’Agostino and Max E. Greenberg

Research Fund. Copyright



2022 by Amy Adler & Jeanne C. Fromer.

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May 2022] MEMES ON MEMES AND THE NEW CREATIVITY 455

1. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 492

2. Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500

3. Licensing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 502

III. H

EMES

PEND

OPYRIGHT

’

OTIONS OF

REATIVITY

, C

OMMERCIALIZATION

AND

ISTRIBUTION

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504

A. The Norms of Copying and Transformation . . . . . . . . 505

1. Copying. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 506

2. Transformation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 509

B. The Creation of Value for Underlying Works

Through Copying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 510

C. Indirect Monetization of Works . . . . . . . . . . . . . . . . . . . . . 511

D. Line Between Commercial and Non-Commercial

Activity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513

E. Breakdown of Idea-Expression Distinction . . . . . . . . . . 515

F. Scale and Pace of Copying . . . . . . . . . . . . . . . . . . . . . . . . . . 516

G. Staleness of Memes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 517

H. Selective Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 518

I. The Centrality of the Meme, Not the Author . . . . . . . . 519

IV. H

HOULD

OPYRIGHT

HINK

BOUT

EMES

? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 524

A. Keep Copyright Law Away from Memes? . . . . . . . . . . 525

B. An Attribution Regime? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 529

C. A Shortened Duration? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 532

D. A Narrowed Copyright Scope? . . . . . . . . . . . . . . . . . . . . . . 534

E. Addressing Selective Enforcement . . . . . . . . . . . . . . . . . . . 536

1. The Worry of Forcing Creators to Allow

Universal Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 539

2. The Worry of Selective Silencing . . . . . . . . . . . . . . . . 540

a. Nearly Everyone Gets to Use a Meme . . . . . 541

b. Except a Select Few . . . . . . . . . . . . . . . . . . . . . . . . 542

V. B

EYOND

EMES

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 545

A. Traditional Works Can Be Like Memes . . . . . . . . . . . . . 546

B. Memes as a Paradigm of a New Model of

Creativity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 550

C. Trying to Make Memes More Like Traditional

Works. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 561

ONCLUSION

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 563

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456 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

NTRODUCTION

Dating back centuries to its earliest enactments, copyright law

has longstanding, built-in notions about creativity, commercialization,

and distribution of creative works that memes turn on their head in

critical ways. Copyright law is constructed on many assumptions

flowing from its base premise that copyright’s exclusive rights to

authors can encourage them to create and distribute socially valuable

creative works by preventing third-party copying of these works.

Central among them are the assumptions that people can generally

create desirable works without much copying, that authors want their

works not to be copied without their permission because otherwise

they will be harmed and disincentivized to create, and that authors

can make money directly off their creative works by exercising their

exclusive rights. Additionally, copyright law dictates that expression

should be protected and ideas should be freely available for reuse,

presuming that idea and expression are distinct. The law also is predi-

cated on the view that authors will have a long period over which to

recoup value for their works, and these works can be valuable for a

very long time. Copyright law also supposes that authors can and

should decide which third parties get to use their works and when and

whether to enforce their rights against third parties who have copied.

Finally, copyright law assumes that authors can easily be identified

See How It Started vs. How It’s Going, K

NOW

OUR

EME

, https://

knowyourmeme.com/memes/how-it-started-vs-how-its-going [https://perma.cc/LM76-

YV7K] (explaining the format of the “How It Started vs. How It’s Going” type of meme).

See infra Part I.

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May 2022] MEMES ON MEMES AND THE NEW CREATIVITY 457

and are central figures who deserve to get the copyright reward for a

work.

Yet in the context of memes spread over the internet, these

assumptions break down in significant ways. For one thing, not only

do meme creators typically want to be copied as much as possible,

they also usually want their works to be transformed by third parties

in untold ways. The copying of memes tends to create significant value

for, rather than detract from, the underlying works on which they are

based. Memes also shatter copyright’s assumption that creative works

are directly monetizable, as memes are usually indirectly monetizable.

The world of memes transcends the line between commercial and

noncommercial activity, while copyright law treats these realms as dis-

tinct. Additionally, memes expose that expression in one context can

become idea in another context, breaking down copyright law’s dis-

tinct categories of unprotectable idea and protectable expression.

Also characteristic of memes is an exponential scale and pace of cop-

ying, which concomitantly expedites the staleness of existing works

and the pace of creation of new works. Moreover, the selective

enforcement that copyright law assumes is turned on its head by the

broad scale of permitted or tolerated copying, as almost all can copy a

work and only a very select few are denied permission to use the

underlying work. Finally, whereas copyright law assumes the cen-

trality of the author, in meme culture the work itself takes on a pri-

mary role over the author, who often cannot even be easily identified.

These features of memes reflect a new creativity that has progressed

far beyond the creativity analyzed at the beginning of the twenty-first

century for user-generated content.

Although memes are often designed to be eye-catching and

funny, they are serious and important in today’s world as one of the

most frequently created and shared categories of creative works on

the internet, especially on social media.

As such, the fact that they

upend so many of copyright law’s central assumptions of creativity,

commercialization, and distribution is worthy of attention. If meme

culture is worth safeguarding, attempts to enforce copyright law as is

with regard to memes are inappropriate given the substantial discon-

nect between memes and copyright law’s assumptions. Therefore, cop-

See infra Part II; see also David Ryan Polgar, Why Understanding Memes Is

Important to Grasping What People Are Really Saying in 2020, F

ORBES

(June 4, 2020),

https://www.forbes.com/sites/davidryanpolgar/2020/06/04/why-understanding-memes-and-

internet-humor-is-important-to-grasping-what-people-are-really-saying-in-2020 [https://

perma.cc/88GK-YEPR] (recognizing memes as a component of “the language people are

speaking on the web”).

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458 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

yright law and theory must either be left to the wayside or refashioned

to account for memes.

But the problem goes well beyond memes. Indeed, memes herald

a much larger shift that is underway in contemporary creativity across

a range of areas, including music, dance, and visual art. As we show,

the problems that memes present are of increasing and widespread

significance to contemporary creators. This emerging creativity shares

multiple characteristics of memes and similarly defies copyright’s core

assumptions. By mapping out the dramatic disconnect between

memes—a paradigm of contemporary creativity—and copyright law

and theory, we can reflect back on the increasing outdatedness of cop-

yright’s core. We conclude by observing that there now seems to be

two paradigms of creativity—the traditional model and what we call

the “new creativity”—that can both remain extant, vibrant, and dis-

tinct, even though they are interconnected and influence one another.

the new creativity.

This Article explores these issues, organizing itself around a

series of memes we created that themselves reflect on memes.

Part I

sets forth the basic tenets of copyright law on creativity, commerciali-

zation, and distribution. Part II offers an overview of memes, presents

an argument for their significance, and outlines their current treat-

ment under copyright law. In Part III, we show how memes pose a

fundamental challenge to copyright law and theory by violating the

central copyright principles of creativity, commercialization, and dis-

tribution. Having established the disconnect between copyright law

and memes, Part IV considers whether and how copyright law could

be modified to account for memes. In Part V, we argue that memes

are far from a sui generis exception to the premises of copyright law.

Instead, memes are a prototype of a new mode of creativity that is

emerging in our contemporary digital era, as can be seen across a

range of works. Therefore, the concern with memes signals a much

broader problem in copyright law and theory.

The memes in this Article were made using Meme Generator,

IMGFLIP

, https://

imgflip.com/memegenerator [https://perma.cc/73D4-S4TF]. Each meme in this Article is

captioned with a corresponding section heading and footnoted with a source documenting

the meme’s background.

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May 2022] MEMES ON MEMES AND THE NEW CREATIVITY 459

OPYRIGHT ON

REATIVITY

, C

OMMERCIALIZATION

AND

ISTRIBUTION

We launch our exploration of memes with background on copy-

right law’s deep-rooted assumptions of creativity, commercialization,

and distribution. These assumptions stem from copyright law’s over-

arching goal of encouraging the creation and distribution of expressive

works deemed to be socially valuable by providing their authors with

exclusive rights against copying.

In particular, American copyright law protects “original works of

authorship fixed in any tangible medium of expression,” including lit-

erary works, visual works, sound recordings, and movies.

A copyright

holder receives, among other things, the exclusive right to reproduce

the work, distribute copies, and prepare derivative works,

typically

until seventy years after the author’s death.

extends to the expression of particular ideas rather than to the ideas

Grumpy Grandpa, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/

grumpy-grandpa [https://perma.cc/Z7EQ-U4S8].

17 U.S.C. § 102(a).

Id. § 106.

Id. § 302(a).

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460 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

themselves.

Yet protection reaches well beyond the actual work to

works that are copied and substantially similar,

“else a plagiarist

would escape by immaterial variations.”

Utilitarianism is the dominant theory underpinning American

According to this theory, copyright law provides

authors the incentive of exclusive rights for a limited duration to moti-

vate them to create and distribute culturally valuable works.

Without this incentive, the theory goes, authors might not invest the

time, energy, and money necessary to create and distribute these

works because they might be copied cheaply and easily by free-riders,

eliminating the ability of authors to profit from their works.

Pursuant to utilitarian thinking, copyright law confers rights that

are designed to be limited in time and scope.

If the rights provided

are excessive, social welfare would be diminished.

For one thing,

exclusive rights in intellectual property can diminish competition by

allowing a rightsholder to charge a premium for access and ultimately

limit these valuable works’ diffusion to society at large.

For another,

given that knowledge is frequently cumulative, society benefits when

creators are permitted to build on previous artistic creations to gen-

erate new works.

For these reasons, copyright law ensures both that

the works it protects fall into the public domain in due course and that

third parties are free to use protected works for certain socially valu-

Id. § 102(b); see, e.g., Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir.

1930) (explaining that creators do not have a property right in ideas that exist “apart from

their expression”).

Corwin v. Walt Disney Co., 475 F.3d 1239, 1253 (11th Cir. 2007).

Nichols, 45 F.2d at 121.

See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 557–58 (1985)

(reviewing past precedents characterizing copyright law as the best way to advance public

welfare); Shyamkrishna Balganesh, Foreseeability and Copyright Incentives, 122 H

ARV

. L.

. 1569, 1576–77 (2009) (“[C]opyright law in the United States has undeniably come to

be understood almost entirely in utilitarian, incentive-driven terms.”); Jeanne C. Fromer,

Expressive Incentives in Intellectual Property, 98 V

. L. R

. 1745, 1750–52 (2012)

[hereinafter Fromer, Expressive Incentives] (“The Supreme Court, Congress, and many

legal scholars consider utilitarianism the dominant purpose of American copyright . . .

law.” (footnote omitted)); William M. Landes & Richard A. Posner, An Economic

Analysis of Copyright Law, 18 J. L

EGAL

TUD

. 325, 326 (1989) (noting that intellectual

property is distinguished by its “‘public good’ aspect”).

See Stewart E. Sterk, Rhetoric and Reality in Copyright Law, 94 M

ICH

. L. R

. 1197,

1203 (1996).

Id. at 1204.

Mark A. Lemley, The Economics of Improvement in Intellectual Property Law, 75

. L. R

. 989, 997 (1997).

See id. at 996–97.

Id.

Id. at 997–98; see also Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575–76

(1994) (discussing the policy benefits of the fair use doctrine, which limits a copyright

holder’s exclusive rights for certain socially beneficial uses).

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May 2022] MEMES ON MEMES AND THE NEW CREATIVITY 461

able purposes.

In this way, a utilitarian theory of copyright law rests

on the premise that the benefit to society of creators crafting valuable

works in exchange for legal incentives offsets the social welfare

costs.

In recent years, scholars have questioned whether the copyright

incentive is necessary in the first instance to motivate people to create

expressive works. Some scholars have explored the vibrant expressive

activity occurring outside the realm of copyright, such as in cuisine,

stand-up comedy, and magic.

Others argue that in certain markets,

incentivizes creativity.

Some scholars hypothesize that people would

create works absent copyright incentives, owing to intrinsic motivation

to do so.

Yet others think this skepticism is wrong or incomplete,

arguing that copyright’s incentive does encourage both creation and

distribution of works.

Indeed, rightly or wrongly, copyright’s incen-

tive theory remains front and center in copyright as currently

implemented.

With this background, we now explore how traditional copyright

theory and doctrine interrelate with the many assumptions copyright

law makes about creativity, commercialization, and distribution.

See Lemley, supra note 15, at 999.

Id. at 996–97.

See, e.g., Christopher J. Buccafusco, On the Legal Consequences of Sauces: Should

Thomas Keller’s Recipes Be Per Se Copyrightable?, 24 C

ARDOZO

RTS

& E

. L.J. 1121

(2007); Emmanuelle Fauchart & Eric von Hippel, Norms-Based Intellectual Property

Systems: The Case of French Chefs, 19 O

. S

. 187 (2008); Dotan Oliar & Christopher

Sprigman, There’s No Free Laugh (Anymore): The Emergence of Intellectual Property

Norms and the Transformation of Stand-Up Comedy, 94 V

. L. R

. 1787 (2008); Jacob

Loshin, Secrets Revealed: Protecting Magicians’ Intellectual Property Without Law, in L

AND

AGIC

: A C

OLLECTION OF

SSAYS

123 (Christine A. Corcos ed., 2010).

See Amy Adler, Why Art Does Not Need Copyright, 86 G

. W

ASH

. L. R

. 313,

329–30 (2018) [hereinafter Adler, Why Art Does Not Need Copyright] (arguing that even if

we accept the utilitarian account of creativity, the necessary incentive for the creation of

visual art stems from the art market’s rigid norm of authenticity, and not at all from

E.g., Rebecca Tushnet, Economies of Desire: Fair Use and Marketplace Assumptions,

51 W

. & M

ARY

L. R

. 513 (2009); Diane Leenheer Zimmerman, Copyrights as

Incentives: Did We Just Imagine That?, 12 T

HEORETICAL

NQUIRIES

L. 29 (2011). For a

survey of this literature and some theoretical and empirical skepticism about it, see

Christopher Buccafusco, Zachary C. Burns, Jeanne C. Fromer & Christopher Jon

Sprigman, Experimental Tests of Intellectual Property Laws’ Creativity Thresholds, 92 T

L. R

. 1921, 1931–43 (2014).

See Buccafusco, Burns, Fromer & Sprigman, supra note 23, at 1976, 1978–79; see also

Julie E. Cohen, Copyright as Property in the Post-Industrial Economy: A Research Agenda,

2011 W

. L. R

. 141, 143 (embracing the idea that creativity is not motivated by

of creative work by industry).

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462 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

A. Creativity Without Copying

without copying. Even though copyright law sometimes condones cop-

ying, in the main it is antagonistic to copying because of copyright’s

goals.

Two of copyright law’s central requirements underscore the law’s

rejection of creativity through copying. Consider first copyright’s orig-

inality requirement, which is a prerequisite for copyright protection.

The Supreme Court has held that work is original so long as it “was

independently created by the author (as opposed to copied from other

works), and that it possesses at least some minimal degree of crea-

tivity.”

A work must merely evidence “intellectual production, . . .

thought, and conception.”

Originality does not necessarily require

true novelty; a minimally creative work is protectable even if there is a

nearly identical work, so long as the other work was not copied.

Judge Learned Hand observed, “[I]f by some magic a man who had

Left Exit 12 Off Ramp, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/

left-exit-12-off-ramp [https://perma.cc/PKW2-4MAK].

17 U.S.C. § 102(a) (“Copyright protection subsists . . . in original works of authorship

fixed in any tangible medium of expression.”).

Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991).

Id. at 362 (quoting Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 59–60

(1884)).

Id. at 345–46.

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May 2022] MEMES ON MEMES AND THE NEW CREATIVITY 463

never known it were to compose anew Keats’s Ode on a Grecian Urn,

he would be an ‘author,’ and, if he copyrighted it, others might not

copy that poem, though they might of course copy Keats’s.”

The

originality requirement as a threshold for copyright protection is thus

premised on an author’s independent creation of a work without

copying.

Now consider copyright law’s rule for infringement. A defen-

dant’s acts can be condemned as infringing only if the defendant actu-

ally copied the plaintiff’s copyrighted work in some capacity.

Hence,

a defendant’s independent creation is a full defense to an infringe-

ment claim.

That said, not all copying is ultimately forbidden. As the

Ninth Circuit has explained, “To infringe, the defendant must . . . copy

enough of the plaintiff’s expression . . . to render the two works sub-

stantially similar.”

Both copyright protection and infringement liability are accord-

ingly grounded in the notion that copying is harmful, something to be

avoided and condemned. One cannot garner copyright protection in

the first place by creating a work that copies from a preexisting work,

and one might be condemned to infringement liability if one has

copied, particularly if one has copied too much.

Both of these crucial aspects of copyright law underpin its

thinking about creativity: Copyright law seeks to and will encourage

creativity, but only that which occurs without much copying, if any.

That is, copyright law assumes that the socially valuable works it seeks

to encourage should occur without copying from others and will not

be considered infringing if they are not copied.

One might under-

stand this as a financial matter: It makes little sense to provide copy-

right’s incentives to someone who copies an existing work or to

condemn a third party who has not actually copied from an existing

work.

Otherwise, if copiers were granted the privileges of copyright,

the copyright incentive would be blunted by allowing secondcomers to

copy from and undercut the copyright incentive provided to the

firstcomer.

This antipathy toward copying can also be understood

Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2d Cir. 1936).

See Design Basics, LLC v. Signature Constr., Inc., 994 F.3d 879, 887 (7th Cir. 2021).

See Skidmore v. Zeppelin, 952 F.3d 1051, 1064 (9th Cir. 2020).

Rentmeester v. Nike, Inc., 883 F.3d 1111, 1117 (9th Cir. 2018) (citing Mattel, Inc. v.

MGA Ent., Inc., 616 F.3d 904, 913–14 (9th Cir. 2010)) (internal marks omitted).

See Jeanne C. Fromer, A Psychology of Intellectual Property, 104 N

. U. L. R

1441, 1443–44 (2010) [hereinafter Fromer, A Psychology of IP] (explaining and analyzing

the creativity that copyright and patent laws seek to promote).

See W

ILLIAM

M. L

ANDES

& R

ICHARD

A. P

OSNER

, T

CONOMIC

TRUCTURE OF

NTELLECTUAL

ROPERTY

85–91 (2003).

See id. at 87–91.

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464 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

morally: Copyists are culpable—such as for appropriating someone

else’s creative labor—and ought to be discouraged.

Yet copyright’s reality is more complex. Copyright law sometimes

condones copying, most notably with regard to fair uses of a work.

The fair use doctrine is thought to stimulate the production of creative

works that do not undercut the value of the original copyrighted work

too much.

It does so by enabling third parties to create culturally

valuable works that must copy from the original work in some

capacity in order to succeed, often transforming it.

As suggested by

the statutory directive on fair use

and elaborated in case law, some

prototypical cases include news reporting, critical reviews, and paro-

dies.

Wendy Gordon has theorized that “fair use [has been used] to

permit uncompensated transfers that are socially desirable but not

capable of effectuation through the market.”

Examples include par-

odies that might cast an unfavorable light on an original work or uses

for which high transaction costs would discourage licensing arrange-

ments with the copyright owner.

This particularized authorization of some copying coincides with

scholarly recognition that copying can encourage creativity. For one

thing, scholars appreciate that artists may create by building on

others’ work or learn from existing works to create new work.

directly, scholars and courts recognize how important copying can be

to creating important new works, whether it be contemporary art like

Richard Prince’s, Star Trek fan fiction, or a new software implementa-

See Mala Chatterjee, Lockean Copyright Versus Lockean Property, 12 J. L

EGAL

NALYSIS

136, 153 (2020) (explaining copyright law through the lens of Lockean theory);

Patrick R. Goold, Moral Reflections on Strict Liability in Copyright, 44 C

OLUM

. J.L. &

RTS

123 (2021) (exploring how intuitive moral evaluations about copying are challenged

and subverted by the strict liability rules in copyright doctrine).

See 17 U.S.C. § 107 (listing circumstances in which “the fair use of a copyrighted

work . . . is not an infringement of copyright”); supra note 18 and accompanying text.

See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577, 590–94 (1994) (discussing

how courts should consider market harms on the copyrighted work which result from the

See Pierre N. Leval, Commentary, Toward a Fair Use Standard, 103 H

ARV

. L. R

1105, 1111–16 (1990) (arguing that whether or not the use of copyrighted material is

justified often depends on the extent to which the use of that material is transformative).

See 17 U.S.C. § 107 (listing non-exclusive factors to motivate a determination of fair

use).

See Campbell, 510 U.S. at 578–85 (parodies); Harper & Row, Publishers, Inc. v.

Nation Enters., 471 U.S. 539, 561 (1985) (news reporting); Sundeman v. Seajay Soc’y, Inc.,

142 F.3d 194, 206 (4th Cir. 1998) (critical review).

Wendy J. Gordon, Fair Use as Market Failure: A Structural and Economic Analysis

of the Betamax Case and Its Predecessors, 82 C

OLUM

. L. R

. 1600, 1601 (1982).

Id. at 1633 (giving as one instance “the owner of a play [being] unlikely to license a

hostile review or a parody of his own drama” (footnote omitted)).

See, e.g., Fromer, A Psychology of IP, supra note 34, at 1461–62.

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May 2022] MEMES ON MEMES AND THE NEW CREATIVITY 465

tion of the Java application program interface.

Moreover, as we have

previously observed, in light of today’s internet age, “as the entire

archive of past creative works becomes more accessible, creators will

have access to more past works to build on and copying will likely play

an even more significant role in creativity.”

Despite this scholarly recognition that fair use exists as one

among several important statutory exceptions to copyright infringe-

ment,

the “exemption” framework implicitly makes default the

assumption that creativity must be without copying. Copying some-

times can be condoned and important in copyright law, but it is the

exception rather than the norm.

B. Morality and Economics of Copying

why copying is not condoned as a general matter. Copyright law takes

See, e.g., Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183 (2021) (Java); Amy Adler,

Fair Use and the Future of Art, 91 N.Y.U. L. R

. 559, 567–72 (2016) [hereinafter Adler,

Fair Use] (contemporary art); Rebecca Tushnet, Legal Fictions: Copyright, Fan Fiction, and

a New Common Law, 17 L

. L.A. E

. L.J. 651 (1997) (fan fiction).

Amy Adler & Jeanne C. Fromer, Taking Intellectual Property into Their Own Hands,

107 C

ALIF

. L. R

. 1455, 1530 (2019) (footnote omitted).

See 17 U.S.C. §§ 107–122 (including, among others, reproductions by libraries and

archives (§ 108), ephemeral recordings (§ 112), and noncommercial broadcasting (§ 118)).

Cf. Shyamkrishna Balganesh, The Obligatory Structure of Copyright Law:

Unbundling the Wrong of Copying, 125 H

ARV

. L. R

. 1664, 1666–74 (2012) (showing that

“much of copyright’s analytical work is done through its creation and maintenance of a

‘duty not to copy’”).

Steven Crowder’s “Change My Mind” Campus Sign, K

NOW

OUR

EME

, https://

knowyourmeme.com/memes/steven-crowders-change-my-mind-campus-sign [https://

perma.cc/N6WP-SPT3].

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466 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

the position that copying someone’s creative work is generally

harmful, both economically and morally. For one thing, copying is

thought to be economically harmful in that it undermines the incen-

tive of creators to make valuable works.

Under this thinking, third

parties’ unauthorized copying undermines the original author’s exclu-

sive rights by allowing copiers to make the same work at a marginal

cost by avoiding the costs of creation.

Moreover, copying others’

work is condemned by some courts as lazy

and by some scholars as

immoral.

C. Profiting from Copyright

If copyright is thought to serve as an incentive to create, it func-

tions by awarding exclusive rights such that authors may directly

profit off their creative works. That is, authors can invoke copyright to

stop others from exercising any of copyright’s exclusive rights,

including reproducing, distributing, and publicly performing a work.

Authors can exercise these rights themselves,

thereby selling access

to their works in various ways. Because these rights are exclusive,

See L

ANDES

& P

OSNER

, supra note 35, at 85–91.

Id.

See, e.g., Kienitz v. Sconnie Nation LLC, 766 F.3d 756, 759 (7th Cir. 2014) (“The fair-

use privilege . . . is not designed to protect lazy appropriators.”); cf. Campbell v. Acuff-

Rose Music, Inc., 510 U.S. 569, 580 (1994) (observing that a fair use claim is less strong

when “the alleged infringer merely uses [the underlying work] to get attention or to avoid

the drudgery in working up something fresh”).

Balganesh, supra note 49, at 1679; Abraham Drassinower, Copyright Infringement as

Compelled Speech, in N

RONTIERS IN THE

HILOSOPHY OF

NTELLECTUAL

ROPERTY

203, 205 (Annabelle Lever ed., 2012) (“[U]nauthorized use of another’s speech . . . den[ies

an author] the very autonomy manifested in and through her speech.”).

Shut Up and Take My Money!, K

NOW

OUR

EME

, https://knowyourmeme.com/

memes/shut-up-and-take-my-money [https://perma.cc/A8B8-XAXG].

17 U.S.C. § 106.

Id.

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May 2022] MEMES ON MEMES AND THE NEW CREATIVITY 467

authors can typically sell their works at higher prices than they would

be able to without them.

Again, copying may interfere with an

author’s profits from these exclusive rights, thereby inflicting eco-

nomic (and moral) harms. By privatizing what would otherwise be a

freely copyable public good through the operation of law, copyright

makes protectable works monetizable.

D. Idea and Expression as Distinct

Beyond creativity and copying, copyright law has further rules

about what material is and is not protectable. In particular, copyright

law extends protection only to the expression of ideas; ideas them-

selves remain in the public domain.

For example, the expression in a

play about star-crossed lovers would be copyrightable, but the idea of

star-crossed lovers would not.

As the Supreme Court has explained,

ideas are excluded from the scope of copyright protection so that they

can be left free for all to use as building blocks to create further

expression.

Courts attribute this principle to protecting First

Amendment values.

See Pamela Samuelson, Allocating Ownership Rights in Computer-Generated Works,

47 U. P

ITT

. L. R

. 1185, 1224–25 (1986).

Zoom Cat Lawyer / I’m Not a Cat, K

NOW

OUR

EME

, https://knowyourmeme.com/

memes/zoom-cat-lawyer-im-not-a-cat [https://perma.cc/M6N7-42LA].

See supra note 9 and accompanying text.

See Nichols v. Universal Pictures Corp., 45 F.2d 119, 121–22 (2d Cir. 1930).

See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349–50 (1991).

See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556 (1985); cf.

Jeanne C. Fromer, An Information Theory of Copyright Law, 64 E

MORY

L.J. 71, 97–102

(2014) [hereinafter Fromer, Information Theory] (“[T]he basic building blocks of

expression ought to be left freely available . . . . It would be both inefficient and unfair to

grant rights in these basic components . . . just because one person happened to employ

them first. Doing otherwise would ultimately be detrimental to generating a robust body of

authored works.” (footnotes omitted)).

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468 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

Courts and scholars find it hard to distinguish between idea and

expression.

As Learned Hand influentially set up the analysis:

Upon any work, . . . a great number of patterns of increasing gener-

ality will fit equally well, as more and more of the incident is left

out. The last may perhaps be no more than the most general state-

ment of what [a work] is about, and at times might consist only of its

title; but there is a point in this series of abstractions where they are

no longer protected, since otherwise the [author] could prevent the

use of his ‘ideas,’ to which, apart from their expression, his property

is never extended.

Judge Hand then concludes, “Nobody has ever been able to fix that

boundary, and nobody ever can.”

Even so, courts have established a

doctrinal framework of abstraction and filtration to distinguish idea

from expression.

Despite the difficulty of distinguishing between the two catego-

ries, copyright law understands the categories to be distinct: one pro-

tectable, the other not.

Star-crossed lovers are always an

unprotectable idea, whereas the words in a play about star-crossed

lovers are always expression and thus potentially protectable.

See, e.g., Nichols, 45 F.2d at 121 (developing a framework for determining

infringement when no actual expression of the copyrighted work is taken and used in the

allegedly infringing work); see also Neil Weinstock Netanel, Copyright and a Democratic

Civil Society, 106 Y

ALE

L.J. 283, 304 (1996) (“[W]hile the idea/expression dichotomy

makes sense in principle, it is notoriously malleable and indeterminate.”).

Nichols, 45 F.2d at 121.

Id.

See id. at 121–23 (breaking down the structure and different elements of the

defendant’s allegedly infringing work (abstraction) to separate protectable expression from

an unprotectable idea (filtration), and holding, based on only the unfiltered elements that

were expression, that the defendant’s motion picture did not infringe the plaintiff’s play);

see also Comput. Assocs. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 706–10 (2d Cir. 1992) (using

the abstraction-filtration framework to determine whether the nonliteral elements of two

computer programs were substantially similar).

Even while explicitly recognizing the interconnection between expression and idea,

when there are only a very limited number of ways to express an idea, idea and expression

are thought to have merged, rendering the expression just as uncopyrightable as the idea.

See Morrissey v. Procter & Gamble Co., 379 F.2d 675, 678–79 (1st Cir. 1967). The

expression in such cases is not protectable because were it otherwise, copyright law would

effectively be providing protection to the idea. See id.

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May 2022] MEMES ON MEMES AND THE NEW CREATIVITY 469

E. The Long Duration of Copyright

If a work meets the various protectability requirements just dis-

cussed, it is typically protected by copyright law for a long time: gener-

ally, an author’s lifetime plus seventy years.

As a policy matter,

duration is premised on the period of time over which an author can

recoup value for their work.

As one of us has explained, Congress

has repeatedly extended copyright duration, asserting that it was

doing so to “account[] for increased average life expectancies for

authors and for the longer commercial life of works,” among other

reasons.

In fact, this duration can be so long that technologies of

dissemination and markets—such as the internet, social media, and

video cassettes—can develop in a way unforeseen to authors a century

or more ago when they first created their work.

This Meme Is from the Future, K

NOW

OUR

EME

, https://knowyourmeme.com/

memes/this-meme-is-from-the-future [perma.cc/ES49-32CU].

See supra text accompanying note 8.

See Eldred v. Ashcroft, 537 U.S. 186, 205–08 (2003).

Fromer, Expressive Incentives, supra note 12, at 1799–1800.

See, e.g., Boosey & Hawkes Music Publishers, Ltd. v. Walt Disney Co., 145 F.3d 481

(2d Cir. 1998) (interpreting contract when the composer’s original piece was licensed for a

movie’s use in theaters but was later released on video cassettes); Rey v. Lafferty, 990 F.2d

1379 (1st Cir. 1993) (construing contract terms when a television program based on a series

of book was later released on video cassette). For an argument that copyright law should

not protect unforeseeable markets, see generally Balganesh, supra note 12.

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470 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

Some argue that copyright protection lasts too long in ways that

undermine copyright’s goals, particularly because the commercial

value of works is not long enough to justify the increased costs that

expresses worry that too-long copyright duration imposes the cost of

“higher prices that will potentially restrict a work’s dissemination” on

society when “after 55 to 75 years, only 2% of all copyrights retain

commercial value.”

Similarly, Kristelia Garc´ıa and Justin McCrary

find in an empirical study that “for the average musical work, sales

drop sharply soon after release.”

Therefore, “for the average work,

the societal cost of strong copyright protection that goes beyond the

point of commercial viability outweighs the benefit to both creators

and consumers as the marginal return on this protection decreases

sharply.”

That said, the trend in copyright law since its earliest years

has been for copyright duration to be extended, never shrunk.

F. Choosing Third Parties as Licensees

Eldred, 537 U.S. at 248, 254 (Breyer, J., dissenting) (citing Brief for Petitioners at 7,

Eldred, 537 U.S. 186 (2003) (No. 01-618); E

DWARD

APPAPORT

, C

ONG

. R

SCH

. S

ERV

OPYRIGHT

ERM

XTENSION

: E

STIMATING THE

CONOMIC

ALUES

, C

ONGRESSIONAL

ESEARCH

ERVICE

EPORT FOR

ONGRESS

8, 12, 15, 16 (1998)).

Kristelia A. Garc´ıa & Justin McCrary, A Reconsideration of Copyright’s Term, 71

. L. R

. 351, 356 (2019).

Id.

See Fromer, Expressive Incentives, supra note 12, at 1799 (citing statutes); Sonny

Bono Copyright Term Extension Act, Pub. L. No. 105-298, 112 Stat. 2827 (1998) (codified

in scattered sections of 17 U.S.C.).

The Simpsons, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/subcultures/

the-simpsons [https://perma.cc/NZ4J-P7QN].

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May 2022] MEMES ON MEMES AND THE NEW CREATIVITY 471

their exclusive rights to third parties.

The law also permits copyright

owners to enforce their rights by bringing an action for copyright

infringement.

These two aspects of copyright law imply that copy-

right owners get to decide which, if any, third parties can use their

works and when and whether to enforce their rights against third par-

ties who have copied their works without permission. Indeed, courts

have espoused the view that this is the copyright holder’s ultimate

choice. For instance, the Second Circuit has stated that copyright law

“must respect [the copyright holder’s] creative and economic choice”

to not exploit an aspect of their exclusive rights.

The copyright owner can grant a select few licenses that they

deem to be efficient. For example, an author of an English-language

book may grant a license to a particular translator to create a French-

language version of the book.

This is understood to be part and

parcel of the copyright incentive in the first instance, as a way to con-

trol who else, if anyone, can make works that might interfere with or

enhance the copyright holder’s market.

Moreover, even without

granting third parties permission to use a work, copyright owners may

tolerate infringing uses.

They might do so, as Tim Wu puts it, due to

“laziness or enforcement costs, a desire to create goodwill, or a calcu-

lation that the infringement creates an economic complement to the

copyrighted work.”

17 U.S.C. § 201(d) (“Any of the exclusive rights comprised in a copyright, including

any subdivision of any of the rights specified by [17 U.S.C. § 106], may be transferred . . .

and owned separately.”).

Id. § 501(b).

Castle Rock Ent., Inc. v. Carol Publ’g Grp., Inc., 150 F.3d 132, 146 (2d Cir. 1998)

(making this observation in a case in which the copyright holder of the Seinfeld television

series sued the maker of a trivia book about the series).

See Paul Goldstein, Derivative Rights and Derivative Works in Copyright, 30 J.

OPYRIGHT

’

U.S.A. 209, 227 (1983) (“[B]y securing exclusive rights to all derivative

markets, [17 U.S.C. § 106(2)] enables the copyright proprietor to select those towards

which it will direct investment.”).

See id.; cf. Jeanne C. Fromer & Mark A. Lemley, The Audience in Intellectual

Property Infringement, 112 M

ICH

. L. R

. 1251, 1255 (2014) (arguing that copyright and

other intellectual property regimes “should require proof of both sufficient technical

similarity and market substitution” to find infringement).

See generally Tim Wu, Tolerated Use, 31 C

OLUM

. J.L. & A

RTS

617 (2008).

Id. at 619.

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472 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

G. The Author’s Centrality

A final assumption on which copyright law is premised is that the

author is central and can generally readily be identified to get their

author, be the work a single-authored work, a joint work, or a work

made for hire.

This grant follows from the constitutional grant of

power to Congress to confer copyright protection on authors for their

writings.

An abundance of critical scholarship attacks the assumption that

the author ought to be the central figure in copyright law deserving of

the reward, particularly when there are many others, including editors

and audiences, who contribute to a work and its value.

Stewart Sterk

goes further to underscore how rhetoric of the author’s centrality to

works has helped create and expand copyright rights, even beyond

what is necessary to achieve copyright’s goals.

Cartman Respect My Authoritah South Park, Y

UBE

, at 0:08 (Oct. 28, 2013),

https://www.youtube.com/watch?v=XBebjUYItKw [https://perma.cc/HMN5-FJ46]; South

Park, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/subcultures/south-park

[https://perma.cc/CLW7-52SH].

17 U.S.C. §§ 201(a)–(b).

U.S. C

ONST

. art. I, § 8, cl. 8 (“Congress shall have Power . . . [t]o promote the

Progress of Science and useful Arts, by securing for limited Times to Authors and

Inventors the exclusive Right to their respective Writings and Discoveries.”).

E.g., M

ARK

OSE

, A

UTHORS AND

WNERS

: T

NVENTION OF

OPYRIGHT

8 (1993)

(noting that authors “produce texts through complex processes of adaptation and

transformation”); T

ONSTRUCTION OF

UTHORSHIP

: T

EXTUAL

PPROPRIATION IN

AW AND

ITERATURE

(Martha Woodmansee & Peter Jaszi eds., 1994) (collection of

papers on the issue of the author’s role in copyright law); Oren Bracha, The Ideology of

Authorship Revisited: Authors, Markets, and Liberal Values in Early American Copyright,

118 Y

ALE

L.J. 186 (2008).

Sterk, supra note 13, at 1197–98; accord Bracha, supra note 89, at 265–66.

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May 2022] MEMES ON MEMES AND THE NEW CREATIVITY 473

Others accept the author’s centrality and seek to explain what

should qualify someone as an author. For example, Chris Buccafusco

theorizes that “to be an author of a writing, one must intend to pro-

duce some mental effect in an audience,” leading him to conclude that

garden designers, computer programmers, and others might be

authors.

Jane Ginsburg and Luke Budiardjo understand authorship

to be the conjunction of devising a creative plan for a work and physi-

cally executing the work.

Right or wrong, the author is copyright law’s central figure. With

these assumptions explored, we now turn to discuss memes.

EMES

In this Part, we introduce the surprisingly elastic and imprecise

definition of the term “meme,” laying bare the centrality of copying to

this category. We then consider the importance of memes by briefly

Christopher Buccafusco, A Theory of Copyright Authorship, 102 V

. L. R

. 1229,

1232–33 (2016).

Jane C. Ginsburg & Luke Ali Budiardjo, Authors and Machines, 34 B

ERKELEY

ECH

. L.J. 343, 346 (2019) (applying that concept to assess when the human participants

who interact with artificially intelligent machines might be considered authors).

Draw 25, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/draw-25 [https://

perma.cc/7UHU-FUX8].

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474 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

exploring their critical role in contemporary creativity, expression,

and political discourse.

A. Overview

“Meme” is a remarkably imprecise and elastic term. The scientist

Richard Dawkins coined the word in his influential 1976 book, The

Selfish Gene, to describe a “unit of cultural transmission” that repli-

cates and stays alive by “leaping from brain to brain.”

The term’s

origins stem from the conceptual analogy Dawkins drew between cul-

tural and biological evolution; Dawkins chose the word to sound like

“gene.”

But Dawkins’s neologism also had a second root that sig-

naled a second conceptual pillar of his theory: the central role of cop-

ying. He chose the term “meme” to reference the Greek word

“mimeme,” meaning “imitation.”

Since its invention, the term “meme” has mutated in meaning.

Dawkins used the term broadly to include things that propagate, sur-

vive, and ultimately penetrate cultures, such as “catch-phrases, clothes

Is This a Pigeon?, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/is-this-a-

pigeon [https://perma.cc/8PBP-424X].

ICHARD

AWKINS

, T

ELFISH

ENE

249 (Oxford U. Press, Inc. 2016) (1976).

Id. Note that there are widespread debates in the field of memetics about this genetic

analogy, including questions it raises about the role of human agency in cultural memes.

See L

IMOR

HIFMAN

, M

EMES IN

IGITAL

ULTURE

10–12 (2013). We return to this debate

below in Section III.H, where we discuss the complexity of authorship in meme culture.

AWKINS

, supra note 95, at 249.

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fashions, ways of making pots or of building arches,” and even the

idea of God.

Debates about the definition and nature of memes

have entered multiple disciplines, including psychology, communica-

tions, linguistics, anthropology, and philosophy.

Scholars routinely

note the word’s imprecision.

100

The colloquial usage of the term has shifted in the digital era to

become inextricably associated with the internet and digital life.

101

But even in this realm, the word is imprecise. In its broadest contem-

porary usage, “meme” applies to any viral sensation online, such as

trending hashtags or viral videos, or even to viral offline behaviors

that are spread by digital culture. Thus, innocuous (if sometimes non-

sensical) fads, like the plank trend

102

or TikTok dances,

103

have been

called “memes,” as have real-world fashion trends that initially spread

online, such as the alt-right fad of wearing Fred Perry shirts or the

Boogaloo Boys’ wearing of Hawaiian shirts.

104

The term has even pen-

etrated the stock market, where the term “meme stock” refers to

stocks such as GME (Gamestop) that see “sudden and dramatic

surges thanks to social media hype” while at the same time being con-

sidered “merely a joke.”

105

Indeed, some sources use the phrase

“meme culture” as a synonym for internet culture more broadly.

106

Id. at 249–50.

E.g., S

USAN

LACKMORE

, T

EME

ACHINE

63–66 (1999); D

ANIEL

C. D

ENNETT

ARWIN

’

ANGEROUS

DEA

: E

VOLUTION AND THE

EANINGS OF

IFE

339–69 (1995);

ATE

ISTIN

, T

ELFISH

EME

: A C

RITICAL

EASSESSMENT

(2005). For summaries of

scholarly debates in memetics about the definition and conceptual foundation of memes,

see Thomas F. Cotter, Memes and Copyright, 80 T

. L. R

. 331, 340–47 (2005); David

A. Simon, Culture, Creativity, & Copyright, 29 C

ARDOZO

RTS

& E

. L.J. 279, 354–60

(2011).

100

See sources cited supra note 99.

101

See Olivia Solon, Richard Dawkins on the Internet’s Hijacking of the Word ‘Meme,’

IRED

UK (June 20, 2013), https://www.wired.co.uk/article/richard-dawkins-memes

[https://perma.cc/64CQ-C5ND]. The term had not yet acquired its present digital valence in

the early days of the internet. Writing in 1998, well before our current meme-driven

culture, Jack Balkin defined memes to include “skills, norms, ideas, beliefs, attitudes,

values, and other forms of information.” J

ACK

M. B

ALKIN

, C

ULTURAL

OFTWARE

: A

HEORY OF

DEOLOGY

43 (1998).

102

See Planking, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/planking

[https://perma.cc/77EZ-ZV4V].

103

See infra Section V.B.

104

See So, White Supremacists Ruined Another Shirt, I

TYLE

(Sept. 30, 2020), https://

www.instyle.com/fashion/clothing/fred-perry-proud-boys-polo [https://perma.cc/KF3S-

C2BY].

105

Brandon Michael, Top Meme Stocks to Buy Right Now? 5 In Focus,N

ASDAQ

(July 7,

2021), https://www.nasdaq.com/articles/top-meme-stocks-to-buy-right-now-5-in-focus-2021-

07-07 [https://perma.cc/6PLK-BH5Q].

106

See, e.g., Helen Lewis, The Joke’s on Us, A

TLANTIC

(Sept. 30, 2020), https://

www.theatlantic.com/international/archive/2020/09/how-memes-lulz-and-ironic-bigotry-

won-internet/616427 [https://perma.cc/F4TX-T3UT].

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476 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

Other sources, however, reserve the word “meme” for a narrower

subset of digital life: digital images that are created and recreated by

continually “pasting captions onto other people’s photos,”

107

mixing images together, or by referring, sometimes obliquely, to pre-

vious images.

108

Meme scholar Limor Shifman emphasizes the

intertextual quality of such memes, defining them as “created with

awareness of each other, and . . . circulated, imitated, and/or trans-

formed via the Internet by many users.”

109

Note the visual nature of

memes in this narrower definition. Stacey Lantagne, for example,

describes memes as mutating “visual images that have morphed

beyond their origin to act as their own form of communicative short-

hand.”

110

Typically for digital memes of this sort, the visual image

remains relatively constant, and users change its meaning through new

text or juxtaposition with other images.

111

While we recognize the term’s imprecision, our focus here is on

this narrower subset of memes: viral visual images continually

remixed by multiple users, juxtaposed with text, or mixed with other

images, that ultimately become their own shorthand for meaning.

112

We consider this definition to be the most commonly used meaning of

the term in popular discourse—at least for now. The reader will note

that this Article’s illustrations are all examples of this core meaning of

the term.

Despite the term’s elasticity, one common thread runs through all

the various definitions, including ours: Memes are about copying, on a

large and widespread scale. Dawkins’s reference to “mimeme” or imi-

tation has persisted at the concept’s core. Whatever else a meme is, an

image (or phenomenon) becomes a meme only if it is widely

copied.

113

Thus, as we explore in Part III, the challenge memes pose to

107

See, e.g., Stacey M. Lantagne, Famous on the Internet: The Spectrum of Internet

Memes and the Legal Challenge of Evolving Methods of Communication, 52 U. R

ICH

. L.

. 387, 389 (2018); see also David Tan, Digital Memes, Fair Use, and the First

Amendment, J. I

NTERNET

L., May 2021, at 1, 23 (quoting B

RADLEY

E. W

IGGINS

, T

ISCURSIVE

OWER OF

EMES IN

IGITAL

ULTURE

: I

DEOLOGY

, S

EMIOTICS

AND

NTERTEXTUALITY

11 (2019)) (noting the “remixed, iterated” nature of digital memes).

108

For example, the Bernie Sanders mittens meme that spread like wildfire after the

2021 presidential inauguration typically involved dropping the image of Sanders into new

settings, frequently without text. See infra notes 152–55 and accompanying text and

images.

109

HIFMAN

, supra note 96, at 41.

110

Lantagne, supra note 107, at 391.

111

Ronak Patel, First World Problems: A Fair Use Analysis of Internet Memes, 20

UCLA E

. L. R

. 235, 237 (2013).

112

See S

HIFMAN

, supra note 96, at 2–6.

113

See Terrica Carrington, Grumpy Cat or Copy Cat? Memetic Marketing in the Digital

Age, 7 G

. M

ASON

J. I

’

. L. 139, 153 (2015).

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law at its core views unauthorized copying as a threat to creativity. Yet

memes, a paradigm of contemporary creativity,

114

owe their very exis-

tence to limitless, unauthorized, viral copying. These fundamental dif-

ferences lead to numerous disconnects between the use of memes and

traditional copyright law, which we explore in Part III.

B. Why Memes Matter

115

It may be tempting for academics to dismiss meme culture.

116

When you think of the prototypical meme user, you may picture a

Gen-Z teenager in a Reddit chatroom making inconsequential,

puerile jokes about pop culture. And unless you spend your life

online, memes frequently seem impenetrable, their meaning depen-

dent on multiple references to other memes and to (often trivial)

shards of pop culture.

117

Worse, if you invest time trying to puzzle out

a meme’s meaning, by the time you “get it,” it may already be old

news, and so many new ones have sprung up that your time spent

decoding may feel futile.

Despite this, we argue that legal scholars should take memes seri-

ously. Whether viewed from the perspective of copyright law (the

focus here), which values creativity, or First Amendment law, which

prizes a robust marketplace of ideas and political discourse, memes

114

See infra Section II.B.

115

Tuxedo Winnie the Pooh, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/

tuxedo-winnie-the-pooh [https://perma.cc/57BP-8939].

116

See S

HIFMAN

, supra note 96, at 2 (noting that the meme concept “has been the

subject of constant academic debate, derision, and even outright dismissal.”).

117

For discussion of the lo-fi aesthetic and the absurdist, ironic tone of meme culture, as

well as its origins on 4chan and later Reddit and Tumblr, see Lewis, supra note 106.

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478 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

matter. We view them as a paradigm of contemporary creativity and a

powerful form of contemporary speech, often with significant political

consequences.

118

We see memes as paradigmatic of contemporary cultural expres-

sion because of the fundamental role copying plays in their production

(going back to the “mimeme” root of the word). As we have previ-

ously argued, while “creativity has always relied to some extent on

copying, the role of copying has taken on much greater urgency in our

contemporary digital culture.”

119

Thus, scholar Limor Shifman writes

that the “the meme concept encapsulates some of the most funda-

mental aspects of contemporary digital culture.”

120

A second aspect of memes also makes them paradigmatic for us:

They are primarily visual in nature. In most memes (but not all), an

image stays constant as the shortcut for meaning, but users continually

swap in new text. This reliance on the visual image also makes memes

emblematic of a larger shift through which “the image has surpassed

the word as the dominant mode of communication,” as one of us has

previously argued.

121

Indeed, Martin Gurri has observed of digital cul-

ture: “What is usually referred to as new media really means the tri-

umph of the image over the printed word.”

122

Moreover, memes matter because they are wildly popular and

one of the most commonly created, shared, and consumed types of

expression. As Fortune put it in 2016, “[f]or the first time ever, memes

are more popular than Jesus,” as “memes” became the most popular

Google search, beating “Jesus”—the most popular search term since

118

See, e.g., Joan Donovan, How Memes Got Weaponized: A Short History, MIT T

ECH

. (Oct. 24, 2019), https://www.technologyreview.com/2019/10/24/132228/political-war-

memes-disinformation [https://perma.cc/F6DP-5FZ7] (noting the use of memes to create

misinformation both by domestic political activists and foreign operatives); Douglas

Haddow, Meme Warfare: How the Power of Mass Replication Has Poisoned the US

Election,G

UARDIAN

(Nov. 4, 2016), https://www.theguardian.com/us-news/2016/nov/04/

political-memes-2016-election-hillary-clinton-donald-trump [https://perma.cc/7AM6-9637]

(“[M]emes are ruining democracy.”); Kaitlyn Tiffany, The Story of the Internet, as Told by

Know Your Meme, V

ERGE

(Mar. 6, 2018), https://www.theverge.com/2018/3/6/17044344/

know-your-meme-10-year-anniversary-brad-kim-interview [https://perma.cc/TE8H-FMHP]

(quoting a technology journalist who describes Donald Trump as a “meme president” and

discusses the power of memes in “shaping public opinion”).

119

Adler & Fromer, supra note 47, at 1529.

120

HIFMAN

, supra note 96, at 4.

121

Amy Adler, The First Amendment and the Second Commandment, 57 N.Y.L. S

. L.

. 41, 42 (2013) [hereinafter Adler, First Amendment]; see also id. at 42–45 (discussing

how images have the power, unlike text, to be equated with what they represent, and

comparing the contemporary fascination with visual media to a “bewitching pull of

images” felt in ancient times).

122

ARTIN

URRI

, T

EVOLT OF THE

UBLIC AND THE

RISIS OF

UTHORITY IN

THE

ILLENNIUM

48 (2018).

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May 2022] MEMES ON MEMES AND THE NEW CREATIVITY 479

2011.

123

Not only are they searched for, but they are created and

shared constantly: Over one million meme posts were made by

Instagram users daily in 2020.

124

As Kaitlyn Tiffany explains,

“[m]emes and pop culture go hand-in-hand now. They don’t sit in sub-

forums and subreddits; they crop up in group chats and on your local

diner’s Instagram account.”

125

We return to these themes in Part V, but for now we note that

given the rising importance of copying to creativity, the move to an

image culture, and the extraordinary popularity of memes, memes

matter because in many ways they represent a paradigm case of a

more general aspect of contemporary speech and creativity.

In this Section, we explore the numerous ways that memes con-

tribute to society: principally newness, creation of common ground,

participatory culture, and providing ways to attract the scarce com-

modity of attention in our current world. We consider not only the

contributions memes make but also the dangers they pose to society.

1. Newness

126

As observed in Part I, the overarching goal of copyright is to

stimulate new works and to “create and disseminate ideas.”

127

Here

we briefly explore various ways in which memes fulfill this goal.

123

Madeline Farber, The Internet Officially Cares More About Memes than Jesus,

ORTUNE

(Oct. 27, 2016), https://fortune.com/2016/10/27/google-trends-memes-jesus

[https://perma.cc/R7FK-LRJD].

124

Instagram Year in Review: How Memes Were the Mood of 2020, I

NSTAGRAM

(Dec.

10, 2020), https://about.instagram.com/blog/announcements/instagram-year-in-review-how-

memes-were-the-mood-of-2020 [https://perma.cc/KAT6-4LX3].

125

Tiffany, supra note 118.

126

CNN Breaking News Template Meme Generator,

IMGFLIP

, https://imgflip.com/

memegenerator/79385373/cnn-breaking-news-template [https://perma.cc/T3CN-D2AT]; see

also Breaking News Parodies, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/

breaking-news-parodies [https://perma.cc/VA3Q-YV8Q].

127

Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558 (1985).

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480 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

a. New Content

128

One thing memes do is contribute new content by copying.

Though that sounds paradoxical, consider the meme above, which

takes its image from a Dos Equis beer commercial featuring the pic-

tured actor as “the most interesting man,” in which he says, “I don’t

always drink beer, but when I do, I prefer Dos Equis.”

129

The image

was copied and memed by combining it with a similarly structured

phrase to convey what the Know Your Meme reference website

describes as a “highly charismatic and well-traveled gentleman with

refined tastes in many things” might say.

130

In less than three years,

one meme webpage collected more than 96,000 distinct submissions of

this meme and one Facebook page garnered 243,000 likes for the

meme.

131

The meme’s copying and spread facilitated new content

itself that was consumed widely.

128

The Most Interesting Man in the World, K

NOW

OUR

EME

, https://

knowyourmeme.com/memes/the-most-interesting-man-in-the-world [https://perma.cc/

D7E3-D3N2].

129

Id.

130

Id.

131

Id.

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b. Recontextualization

132

Another way memes create new expression and meaning is by

recontextualizing existing works. The meme above is an example. The

painting, owned by the Louvre, is a self-portrait by the eighteenth-

century portraitist Joseph Ducreux. In its life as a meme, the image

has become a template on which users superimpose “archaic reinter-

pretation[s]” of popular rap lyrics.

133

Although there are extensive

variations, we include the image above because it is a version of the

opening line to Roy Orbison’s iconic song Oh, Pretty Woman—

“Pretty woman, walking down the street”—the subject of the

Supreme Court’s seminal copyright decision in Campbell v. Acuff-

Rose Music, Inc.

134

132

Joseph Ducreux / Archaic Rap, K

NOW

OUR

EME

, https://knowyourmeme.com/

memes/joseph-ducreux-archaic-rap [https://perma.cc/CD6T-HWJR].

133

Id.

134

510 U.S. 569, 569, 594–97 (1994).

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482 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

c. Combinations

135

Memes sometimes add new meaning to existing images by com-

bining works to make a mashup that then becomes a new meme of its

own with new meaning; the resulting combination might be called a

“supermeme.” For example, the reader may recognize the popular

supermeme pictured above, which is a remix of two preexisting

memes, one a still from a television episode of The Real Housewives

of Beverly Hills, and the other, a “confused cat at dinner” meme.

136

Twitter user combined these memes into a new image and shared it

online, remarking “[t]hese photos together [are] making me lose

it.”

137

The combination of these two images became so wildly popular

in 2019 that it became its own meme, Woman Yelling at a Cat, which

has been frequently copied as a template for new expression.

138

The

combined meme was even given a visual (fake) backstory of what hap-

pened to the woman and the cat.

139

135

Woman Yelling at a Cat, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/

woman-yelling-at-a-cat [https://perma.cc/P6GY-6FMA].

136

Id.

137

Id.

138

Id.; see also Is This a Pigeon?, supra note 94 (providing another example of a

supermeme).

139

See Giedre Vaiciulaityte, Artist Gives the “Woman Yelling at a Cat” Meme a Deep

Twist, B

ORED

ANDA

, https://www.boredpanda.com/woman-yelling-at-cat-comic-unfins

[https://perma.cc/7DTE-8RYW] (featuring a four-part comic series giving backstory to the

characters of the iconic meme).

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2. Common Culture, Common Ground

140

Memes also help forge a common culture by giving individuals

works through which they can connect with one another. Just as one

might share an aspect of Cinderella to communicate something about

evil stepmothers or princess fantasies, an individual can invoke a

widely shared meme to communicate a certain point, as well as to

signal that the speaker and the listener speak the same language.

141

light of this aspect of memes, linguists James Willmore and Darryl

Hocking call memes “fundamentally conversational in nature.”

142

They explain that “the locus of this conversational capacity lies in the

way that Internet memes employ the type of demotic creativity,

including repetition, pattern reformulation, punning, morphological

inventiveness, invented phrase, and figures of speech, that . . . are

common to everyday conversational language.”

143

Not only do memes contribute to common culture, but they also

draw on it. As communications scholar Rebecca Ortiz observes,

“[m]emes are only shareable when there’s something about them that

140

Jack Sparrow Being Chased,

IMGFLIP

, https://imgflip.com/memegenerator/Jack-

Sparrow-Being-Chased [https://perma.cc/6X6D-GNHC].

141

Cf. Cohen, supra note 24, at 147–48 (analyzing how copyright law plays a significant

role in producing as well as enabling access to a common culture, both directly and

indirectly); Rebecca Tushnet, Domain and Forum: Public Space, Public Freedom, 30

OLUM

. J.L. & A

RTS

597, 603 (2007) (“Like a shopping mall, Gone with the Wind is part of

our collective experience, even though it is also a private possession used to generate

revenue.”).

142

James Willmore & Darryl Hocking, Internet Meme Creativity as Everyday

Conversation, 2 J. A

SIA

-P

. P

ULTURE

140, 163 (2017).

143

Id.

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484 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

. . . a select group of people can understand.”

144

A meme might

include an image from a popular children’s television show or use a

catchphrase uttered by a politician, and to be successful, it helps to

draw on common ground.

By both drawing on and contributing to common culture, memes

create what Ortiz describes as “an in-group connection.”

145

As she

elaborates, it might be “a group of billions” or more niche, but either

way, memes can help people “connect with somebody through these

shared meanings and cultural references” and “feel . . . special for

understanding it.”

146

Wilmore and Hocking further reflect that memes

“facilitate a sense of communal belonging and ideological alignment;

they are fun, spirited, and spontaneous; and they can also provoke

wider sociopolitical dialogue.”

147

3. Participatory Culture

148

Somewhat relatedly, meme culture is not top-down, with society

being fed expressive works and passively consuming them. Anyone

with a digital device and an internet connection can readily participate

in making and sharing memes. Rebecca Ortiz elaborates:

144

Emily Zemler, The Expansive Power of the Internet Meme, S

HONDALAND

(Oct. 15,

2020), https://www.shondaland.com/inspire/a34362565/instagram-10th-anniversary-power-

of-internet-meme [https://perma.cc/9EY4-CPJL] (quoting Ortiz).

145

Id.

146

Id.

147

Willmore & Hocking, supra note 142, at 163.

148

Oprah’s “You Get a Car,” K

NOW

OUR

EME

, https://knowyourmeme.com/memes/

oprahs-you-get-a-car [https://perma.cc/5QLZ-ANQM].

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Anybody can be a producer, and that’s one key piece to this.

Because they’re not meant to be high production quality and

because they’re meant to be quickly thrown together in response to

what’s happening in the culture at that moment, it allows people to

become these media producers very quickly and very easily without

needing all the fancy knowledge or the fancy production quality.

149

Free online meme generators help users craft and adapt memes to

share, which they can easily do on a myriad of social media plat-

forms.

150

As one artist writes, memes “are the democratizing medium

of our collective digital present.”

151

Bernie Sanders Wearing Mittens Sitting in a Chair Meme

152

As just one example of the participatory culture fostered by

meme creation and sharing, consider the meme Bernie Sanders

Wearing Mittens Sitting in a Chair (shown above), widely spread and

transformed following the 2021 presidential inauguration of Joe

Biden. The image attracted attention in large part because Sanders’s

dress was less formal than that of others and was taken to convey that

Sanders would rather not have been there.

153

The initial tweets of this

image spread like wildfire

154

and in no time, others were placing

149

Zemler, supra note 144 (quoting Ortiz).

150

See David Nield, 6 Easy Ways to Make Your Own Memes, W

IRED

(May 30, 2021),

https://www.wired.com/story/6-easy-ways-make-memes [https://perma.cc/QR3T-LHU2]

(describing various online platforms which allow users to generate memes).

151

Alice Bucknell, What Memes Owe to Art History, A

RTSY

(May 30, 2017), https://

www.artsy.net/article/artsy-editorial-memes-owe-art-history [https://perma.cc/NW7X-

M5L6] (arguing that memes, similar to 1960s performance art, “offer a highly accessible

and interactive platform of production that is ripe for challenge and dissent, with

disagreements and controversy only fueling the fire of a successful meme truly going

viral”).

152

Bernie Sanders Wearing Mittens Sitting in a Chair, K

NOW

OUR

EME

, https://

knowyourmeme.com/memes/bernie-sanders-wearing-mittens-sitting-in-a-chair [https://

perma.cc/9E2L-XTR5].

153

See id.

154

Id. (explaining that, for example, one reporter’s post about the photo was retweeted

46,000 times within twenty-four hours).

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486 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

Sanders in all sorts of other settings—be they historic periods, paint-

ings, or other memes (some of which are sampled below).

Subsequent Variations of Bernie Sanders Wearing Mittens Sitting in a Chair Meme

155

Bernie Sanders Wearing Mittens Sitting in a Chair – Chairman Bernie’s on the Moon,

NOW

OUR

EME

, https://knowyourmeme.com/photos/1998652-bernie-sanders-wearing-

mittens-sitting-in-a-chair [https://perma.cc/UUJ5-2QGW]; Chicago Claims Dibs on Best

Sanders Memes, WTTW (Jan. 21, 2021), https://news.wttw.com/2021/01/21/chicago-claims-

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May 2022] MEMES ON MEMES AND THE NEW CREATIVITY 487

4. The Attention Economy

156

Memes are also particularly valuable in contemporary culture

because they allow creators to draw attention to their ideas in a world

in which attention is scarce and speech is cheap. As the internet has

dramatically reduced the costs of producing and disseminating

works,

157

we are now drowning in information.

158

The real barrier for

creators is no longer what it costs to create and distribute work, but

instead the problem of how to gain anyone’s attention in a world of

information overload. We posit that memes are perfect modes of

expression for speakers in our attention-scarce world.

159

Immediately

recognizable, funny, and attention-grabbing, memes can be consumed

almost instantaneously by viewers suffering from shorter and shorter

dibs-best-sanders-memes [https://perma.cc/QWF5-YPHT]; Bernie Sanders Wearing Mittens

Sitting in a Chair – Skyscraper Lunch, K

NOW

OUR

EME

, https://knowyourmeme.com/

photos/1998018-bernie-sanders-wearing-mittens-sitting-in-a-chair [https://perma.cc/Y98U-

BFVW]; Amit Paranjape (@aparanjape), T

WITTER

(Jan. 23, 2021, 2:31 AM), https://

twitter.com/aparanjape/status/1352881716273111041 [https://perma.cc/W8CW-AXDH].

156

Calvin Candie Meme Generator,

IMGFLIP

, https://imgflip.com/memegenerator/

49576512/calvin-candie [https://perma.cc/CM7D-W483]; see also Calvin Candie, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/calvin-candie [https://perma.cc/WW4A-

ENYV].

157

See Mark A. Lemley, IP in a World Without Scarcity, 90 N.Y.U. L. R

. 460, 507

(2015) (“Once creation is cheap enough, people may do it without the need for any IP

incentive.”); cf. Jake Linford, Copyright and Attention Scarcity, 42 C

ARDOZO

L. R

. 143

(2020) (considering how preserving copyright protection can lower attention costs).

158

See, e.g., Adler, Fair Use, supra note 46, at 572 (arguing that we are now “drowning”

in a “sea of images”); Julie E. Cohen, The Regulatory State in the Information Age, 17

HEORETICAL

NQUIRIES

L. 369, 384 (2016) (using the term “infoglut” to describe how

sophisticated speakers can create confusion and undermine certainty by overloading the

public with speech); Tim Wu, Is the First Amendment Obsolete?, 117 M

ICH

. L. R

. 547,

554–56 (2018) (discussing three technological and economic developments which have led

to a flood of information, and positing that “[i]f it was once hard to speak, it is now hard to

be heard”).

159

See Felix Salmon, The Musk Meme Economy, A

XIOS

(Feb. 9, 2021), https://

www.axios.com/meme-economy-tesla-elon-musk-c1e9c225-d8e2-4953-a591-

0a29dacf2d4a.html [https://perma.cc/ELM6-VDEB] (“Attention is a commodity, which

means that memes—a way of focusing and scaling attention—are a way to create value.”).

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488 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

attention spans.

160

The visual nature of memes facilitates this quick-

ness; as the Supreme Court observed long ago, visual images can be “a

short cut from mind to mind.”

161

As the Senior Editor of meme refer-

ence site Know Your Meme states:

The best memes are able to get a very specific idea across using very

few words and a clear photograph or video. Based on how well

those ideas are communicated, other people share them. There are

other factors involved—who is sharing it, their follower count, who

sees it, what platform it’s on—but if you boil it all down, it’s about

that economy.

162

Indeed, mathematical studies of memes show how they compete,

often effectively, for limited user attention.

163

In the First Amendment context, Tim Wu and others have

famously observed that the digital age has ushered in a new “attention

economy”

164

in which it is no longer speech that is scarce, but rather

listeners’ attention.

165

While Wu focuses on the rise of “attention

merchants”—businesses like Facebook and others that exploit and

resell our limited attention (and privacy)

166

—here we consider the rel-

evance of the attention economy to individual speakers rather than

platforms. Communicating by meme is a hack that gives individual

speakers a fighting chance to be heard in our attention-scarce world.

160

We hope we have grabbed your attention by organizing this Article around memes.

We could have written this Article without them, but would you have read until this point?

161

W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 632 (1943) (discussing this idea

with respect to flags and emblems).

162

Zemler, supra note 144 (quoting Matt Schimkowitz).

163

See generally James P. Gleeson, Kevin P. O’Sullivan, Raquel A. Ba ˜nos & Yamir

Moreno, Effects of Network Structure, Competition and Memory Time on Social Spreading

Phenomena, 6 P

HYS

. R

. X 021019 (2016) (distinguishing the roles of two factors

affecting meme popularity: the memory time of users and the connectivity structure of the

social network).

164

Tim Wu, Blind Spot: The Attention Economy and the Law, 82 A

NTITRUST

L.J. 771

(2019).

165

See Wu, supra note 158, at 548; see also Ellen P. Goodman, Media Policy out of the

Box: Content Abundance, Attention Scarcity, and the Failures of Digital Markets, 19

ERKELEY

ECH

. L.J. 1389, 1392–93 (2004) (explaining that digital innovations have

“multiplied content and freed audiences from network schedules”); G. Michael Parsons,

Fighting for Attention: Democracy, Free Speech, and the Marketplace of Ideas, 104 M

INN

. L.

. 2157, 2160 (2020) (arguing that the “marketplace for ideas” theory in First

Amendment analysis should be built around attention).

166

See generally T

, T

TTENTION

ERCHANTS

: T

PIC

TRUGGLE TO

NSIDE

EADS

(2016).

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May 2022] MEMES ON MEMES AND THE NEW CREATIVITY 489

5. The Dangers of Memes

167

Memes, as a medium of communication, are not inherently good

or bad. But it is inescapable that in recent years, in addition to

spreading fun jokes and pictures of cats, memes have also been lever-

aged by extremist groups to spread propaganda, hate, and disinforma-

tion.

168

One prominent example comes from the fringe alt-right’s use

of sites like 4chan to weaponize hateful, racist, and antisemitic memes

and to spread them into mainstream politics.

169

For example, the neo-

Nazi site The Daily Stormer holds a weekly “Memetic Monday” in

which they post image macros for memes designed to be shared on

Facebook and Twitter.

170

One scholar argues that the fringe alt-right is

so masterful at using memes to spread its views that it actually

“memed Donald Trump into office.”

171

The alt-right’s mastery of the

167

Marked Safe, S

LANG

ANG

, https://www.slanglang.net/memes/marked-safe [https://

perma.cc/7HK2-KJX6].

168

A high-profile example comes from the Pepe the Frog meme, discussed below in

Section II.C.1. Even if the alt-right has been adept at leveraging memes, they can be

marshalled in any political direction. That does not erase, however, their ability to coarsen

and polarize our discourse, to spread disinformation, and, in doing so, to create threats to

our national security. See generally Donovan, supra note 118.

169

See A

LICE

ARWICK

& R

EBECCA

EWIS

, D

ATA

& S

’

SCH

. I

NST

., M

EDIA

ANIPULATION AND

ISINFORMATION

NLINE

36 (2017), https://datasociety.net/pubs/oh/

DataAndSociety_MediaManipulationAndDisinformationOnline.pdf [https://perma.cc/

R8GV-FQZN] (discussing the alt-right’s use of memes as propaganda); see also Emiliano

De Cristofaro, Memes Are Taking the Alt-Right’s Message of Hate Mainstream,

ONVERSATION

(Dec. 12, 2018), https://theconversation.com/memes-are-taking-the-alt-

rights-message-of-hate-mainstream-108196 [https://perma.cc/8FNC-9XHA] (describing a

study finding that the alt-right web communities, such as 4chan’s “Politically Incorrect”

board (/pol/), generated “a wide variety of racist, hateful, and politically charged memes”

and spread them to other parts of the internet). See generally A

NGELA

AGLE

, K

ILL

ORMIES

: O

NLINE

ULTURE

ARS FROM

CHAN AND

UMBLR TO

RUMP AND THE

IGHT

(2017) (exploring the alt-right’s culture in 4chan and other communities).

170

ARWICK

& L

EWIS

, supra note 169, at 36.

171

ALE

ERAN

, I

AME FROM

OMETHING

WFUL

: H

OW A

OXIC

ROLL

RMY

CCIDENTALLY

EMED

ONALD

RUMP INTO

FFICE

(2019); see also Dale Beran, 4chan:

The Skeleton Key to the Rise of Trump,M

EDIUM

(Feb. 14, 2017), https://medium.com/

@DaleBeran/4chan-the-skeleton-key-to-the-rise-of-trump-624e7cb798cb [https://perma.cc/

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490 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

meme genre is captured by a meme itself: the alt-right insult meme

called “The Left Can’t Meme.”

172

Perhaps this should come as no surprise. The power of memes, as

described above, is also their danger: their ability to virally spread

quickly consumed, potently distilled messages that can grab attention

in our attention-scarce world. That memes foster in-group sense of

belonging and are often funny only adds to their power. It is no

wonder that memes can be forceful tools of radicalization and polari-

zation.

173

Yet even if the alt-right or other political groups have been

adept at leveraging memes, they have also been marshalled in other

political directions, and of course in non-political ones, as most of the

memes we share in this Article illustrate.

What can we make of this dangerous capacity of memes from the

perspective of copyright law, the primary focus of this Article? Copy-

right law is famously value-neutral about the creative works it pro-

motes.

174

And to the extent copyright law is thought to embody First

Amendment values,

175

First Amendment law is also famously content-

neutral about speech (while of course shot-through with exceptions)

94N9-2ZDH] (discussing the Pepe the Frog meme as a symbol for why young men voted

for Trump).

172

See The Left Can’t Meme, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/

the-left-cant-meme [https://perma.cc/W8RC-DRZV] (documenting this alt-right insult for

the perceived failure of the left to use memes effectively).

173

E.g., Joshua Citarella, Marxist Memes for TikTok Teens: Can the Internet Radicalize

Teenagers for the Left?, G

UARDIAN

(Sept. 12, 2020), https://www.theguardian.com/

commentisfree/2020/sep/12/marxist-memes-tiktok-teens-radical-left [https://perma.cc/

8ULJ-MQSF] (suggesting that social media can, in addition to radicalizing the far-right, be

a tool for progressive politicization); K

AREN

ORNBLUH

& E

LLEN

P. G

OODMAN

, R

EPORT

AFEGUARDING

IGITAL

EMOCRACY

: D

IGITAL

NNOVATION AND

EMOCRACY

NITIATIVE

OADMAP

8 (2020) (discussing how internet platforms “became hosts for third-

party, politically motivated influence campaigns”); Andrew Moshirnia, Countering

Pernicious Images: Memetic Visual Propaganda and the 2018 Elections, 50 S

ETON

ALL

. 79 (2019).

174

See Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903) (“It would be

a dangerous undertaking for persons trained only to the law to constitute themselves final

judges of the worth of pictorial illustrations.”). See generally Barton Beebe, Bleistein, The

Problem of Aesthetic Progress, and the Making of American Copyright Law, 117 C

OLUM

L. R

. 319 (2017) (analyzing copyright law’s struggle with the notion of aesthetic

progress).

175

E.g., Golan v. Holder, 565 U.S. 302, 327–35 (2012) (“[T]he Framers . . . saw copyright

as an ‘engine of free expression.’” (quoting Eldred v. Ashcroft, 537 U.S. 186, 219 (2003))).

But see, e.g., Neil Weinstock Netanel, Locating Copyright Within the First Amendment

Skein, 54 S

TAN

. L. R

. 1, 4 (2001) (exploring how copyright law has “imposed an

increasingly onerous burden on speech”).

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May 2022] MEMES ON MEMES AND THE NEW CREATIVITY 491

and generally urges “more speech” as the solution to dangerous

speech unleashed in our free-for-all marketplace of ideas.

176

While memes are not inherently left- or right-leaning and while

they can be marshalled for good or for ill, they do exemplify a change

in the nature of online discourse itself. In an earlier digital era, pop-

ular and legal discourse tended to view the explosion of online speech

as a tool of liberation and democratization.

177

Yet we are now in the

midst of a reckoning about the threats that our online information

ecosystem poses to democracy, public debate, and other urgent social

issues.

178

As an emerging wave of First Amendment scholars grapples

with the dangers of online communication (primarily focused on plat-

forms),

179

we think memes deserve close scrutiny in this

conversation.

180

176

See, e.g., Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring)

(stating that in all but the most severe of emergencies, “more speech,” and not “enforced

silence,” is the remedy).

177

In 1998, Kathleen Sullivan called the internet “First Amendment manna from

heaven.” Kathleen M. Sullivan, First Amendment Intermediaries in the Age of

Cyberspace, 45 UCLA L. R

. 1653, 1669 (1998). A year earlier, the Supreme Court

marveled at the internet’s utopian potential, observing that it enabled “tens of millions of

people to communicate with one another and to access vast amounts of information from

around the world.” Reno v. ACLU, 521 U.S. 844, 850 (1997); accord Packingham v. North

Carolina, 137 S. Ct. 1730, 1735 (2017) (describing the “vast democratic forums of the

Internet” (quoting Reno, 521 U.S. at 868)).

178

E.g., H

EATHER

UZANNE

OODS

& L

ESLIE

A. H

AHNER

, M

AKE

MERICA

EME

GAIN

: T

HETORIC OF THE

-R

IGHT

2 (2019) (arguing that alt-right meme

discourse “became a regressive force on public culture, ultimately stultifying exchange”);

Donovan, supra note 118 (recognizing the serious threat that emerges when “hoaxes and

psychological operations” are globally propagated via memes).

179

E.g., W

, supra note 166.

180

Cf. James Grimmelmann, The Platform Is the Message, 2 G

. L. T

ECH

. R

. 217

(2018) (analyzing the difficulties of platform content moderation in our algorithmic,

demand-driven media ecosystem by exploring the persistence of the Tide Pod meme).

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492 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

C. Copyright Claims for Memes

181

Though it has not been the norm, there have been some copyright

claims made as to memes. Some have sued for copyright infringement,

some have asked for credit, and some have licensed memes. This

Section describes and contextualizes some of the more prominent

claims.

1. Litigation

182

A mere handful of the countless number of creators of memes

and their underlying images have asserted copyright claims against

181

Lawyer Dog, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/lawyer-dog

[https://perma.cc/B8XU-8WBS].

182

Evil Kermit, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/evil-kermit

[https://perma.cc/G7KQ-Y9VJ].

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meme copyists to control the spread of their memes.

183

This low pro-

portion indicates that most of the copying and creation happening

with memes is currently happening outside of copyright’s sphere. The

claims that are brought tend to be brought by a meme creator (or

creator of a meme’s underlying image) against a commercial entity

seeking to profit directly off the work, or against a copyist with a polit-

ical or other message the creator deems to be undesirable. That said,

as a final example in this Section shows, the threat of copyright

infringement claims brought against everyday meme users who do not

fit these paradigms lingers.

184

Some of the most successful, widely-copied memes have been the

subject of copyright infringement lawsuits. These claims have not been

brought one-by-one against each copyist but against a limited number

of copyists, often for commercially using the meme. Take the

Keyboard Cat and Nyan Cat memes. Keyboard Cat involves video

footage of a cat dressed in human clothing and appearing to play a

piano, a still of which is shown below.

185

Nyan Cat, also shown below,

is described as “an 8-bit animation depicting a cat with the body of a

cherry Pop-Tart flying through outer space.”

186

These memes’ creators

sued Warner Bros. and 5th Cell Media for copyright and trademark

infringement for using these characters in their Scribblenauts vide-

183

Someone pictured in a meme might also assert a claim for violation of their rights of

publicity or privacy, which involve different bodies of law than copyright. Lantagne, supra

note 107, at 420–23. See generally J

ENNIFER

E. R

OTHMAN

, T

IGHT OF

UBLICITY

RIVACY

EIMAGINED FOR A

UBLIC

ORLD

1–7 (2018) (exploring laws that protect the

right of publicity—defined as the right to prevent the unwanted commercial use and

copying of one’s name, likeness, and identity—and examining intersections with copyright,

property, and privacy laws); Danielle Keats Citron, Mainstreaming Privacy Torts, 98

ALIF

. L. R

. 1805 (2010) (proposing a modern approach to privacy torts that accounts

for the longevity of harm stemming from digital-age privacy violations). For a comedic take

on the dignitary and other harms someone depicted in a meme might suffer, see Saturday

Night Live (NBC television broadcast Feb. 29, 2020) (Uncle Meme), https://

www.youtube.com/watch?v=A_mhtXadceM [https://perma.cc/LMQ7-HCDT]. For a more

serious take, see Sirin Kale, Life Beyond the Meme: What Happens After You Go Viral,

BBC (Mar. 7, 2019), https://www.bbc.co.uk/bbcthree/article/e6511d6a-ea8c-4e27-aac3-

728205903635 [https://perma.cc/JZB5-66YG]; Neetzan Zimmerman, ‘Star Wars Kid’

Breaks Silence, Says Online Fame Made Him Suicidal [UPDATE], G

AWKER

(May 10,

2013, 9:41 AM), https://gawker.com/star-wars-kid-breaks-silence-says-online-fame-made-h-

499800192 [https://perma.cc/EF4Q-KRYQ] (relating how the unwitting subject of a

popular meme experienced extreme cyber-bullying, leading to his hospitalization for

severe depression).

184

See infra notes 216–22 and accompanying text.

185

Keyboard Cat, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/keyboard-

cat [https://perma.cc/M6X8-WJZA].

186

Nyan Cat, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/nyan-cat [https://

perma.cc/24C3-TTNN].

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494 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

ogame, as also shown below.

187

The lawsuit settled a few months later,

with the meme creators receiving payment for the characters’ con-

tinued appearance in the videogame.

188

Keyboard Cat

189

(left) and Nyan Cat

190

(right)

Screenshot from Scribblenauts Videogame

191

Similarly, the owner of Grumpy Cat—a meme which was widely

shared after the owner’s brother posted a photograph of a cat to

187

Complaint, Schmidt v. Warner Bros. Ent., Inc., No. CV13-02824-JFW, 2013 WL

1728009 (C.D. Cal. Apr. 22, 2013); Milord A. Keshishian, Keyboard Cat and Nyan Cat’s

Attorneys Sue Scribblenauts Videogame for Copyright and Trademark Infringement,

ILORD

L. G

. (Apr. 30, 2013), https://www.iptrademarkattorney.com/los-angeles-

perma.cc/N6FQ-PX2S].

188

Katie Van Syckle, Keyboard Cat and Nyan Cat Come Out Ahead in Lawsuit Against

Warner Bros., N.Y. M

. (Sept. 26, 2013), https://nymag.com/intelligencer/2013/09/

keyboard-cat-nyan-cat-win-warner-bros-lawsuit.html [https://perma.cc/BC4R-ZCRV].

189

Keyboard Cat, supra note 185.

190

Nyan Cat, supra note 186.

191

This videogame screenshot is displayed in Keshishian, supra note 187.

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Reddit (shown below)

192

—sued and won $710,000 for copyright

infringement against the makers of Grumpy Cat Grumppuccino iced

coffee drinks for exceeding the scope of a licensing agreement to use

Grumpy Cat imagery.

193

Grumpy Cat

194

(left), and Grumpy Cat Grumppuccino Beverages

195

(right)

In a similar scenario, the mother (and photographer) of Success

Kid (shown below)

196

sued the maker of a fireworks product called

Back Off for copyright infringement after Back Off used her son’s

image on the packaging (also shown below).

197

According to the alle-

gations, “Success Kid has generated substantial value, goodwill, and

licensing revenue from authorized and age-appropriate commercial

uses by companies who wish to associate Success Kid’s goodwill with

their products and services, including Virgin Mobile, Radio Shack,

Bell Canada, Marriott Hotels, Medicare, General Mills, and Coca

192

Grumpy Cat, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/grumpy-cat

[https://perma.cc/686U-UPT8].

193

Scott Neuman, Grumpy Cat Awarded $710,000 in Copyright Infringement Suit, NPR

(Jan. 25, 2018), https://www.npr.org/sections/I-way/2018/01/25/580588088/grumpy-cat-

awarded-710-000-in-copyright-infringement-suit [https://perma.cc/ACF5-933W].

194

Grumpy Cat, supra note 192.

195

Eun Kyung Kim, Will Grumpy Cat Coffee Drinks Turn That Frown Upside Down?,

ODAY

(July 29, 2013), https://www.today.com/food/will-grumpy-cat-coffee-drinks-turn-

frown-upside-down-6c10788643 [https://perma.cc/6FKD-Z2VT].

196

Success Kid / I Hate Sandcastles, K

NOW

OUR

EME

, https://knowyourmeme.com/

memes/success-kid-i-hate-sandcastles [https://perma.cc/R6DS-F668].

197

Complaint at 7–9, Griner v. Jake’s Fireworks, Inc., No. 15-cv-162-Orl-22, 2015 WL

777621 (M.D. Fla. Feb. 3, 2015); John McCarthy, Viral Meme Success Kid’s Mum Sues

Fireworks Firm Using Her Son’s Likeness, D

RUM

(Feb. 25, 2015), https://

www.thedrum.com/news/2015/02/25/viral-meme-success-kids-mum-sues-fireworks-firm-

using-her-sons-likeness [https://perma.cc/2RM7-DQP2].

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496 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

Cola.”

198

The mother’s lawyer noted further that “[w]e’re not ques-

tioning the right of Internet users to use this. This is more about a

company making our client a de facto endorser of an age-

inappropriate product.”

199

The case subsequently settled.

200

Success Kid

201

(left), and Back Off Fireworks

202

(right)

Other creators of memes and their underlying images have pur-

sued copyright infringement claims against those whose messages they

find detestable. As one high-profile example, Matt Furie, the creator

of the Pepe the Frog character (shown below),

203

sued Alex Jones and

Infowars for copyright infringement for making and selling Make

America Great Again posters featuring Pepe the Frog (also shown

below).

204

This came in the wake of members of the alt-right move-

ment and Donald Trump adopting and repeatedly meming Pepe the

Frog.

205

Furie opposed these messages using his character and in an

attempt to disavow and stop these uses, he killed off the character by

publishing a comic book featuring Pepe’s funeral.

206

When Jones

198

Complaint, supra note 197, at 1–2.

199

Todd Wasserman, Boom! Success Kid’s Mom Sues Fireworks Company for Using His

Image, M

ASHABLE

(Feb. 25, 2015), https://mashable.com/archive/success-kid-lawsuit

[https://perma.cc/8HMZ-9UCY].

200

Joint Notice of Settlement, Griner v. Jake’s Fireworks, Inc., No. 15-cv-162-Orl-22

(M.D. Fla. July 6, 2015).

201

Success Kid / I Hate Sandcastles, supra note 196.

202

McCarthy, supra note 197.

203

Pepe the Frog, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/pepe-the-

frog [https://perma.cc/29CA-ECC5].

204

Complaint, Furie v. Infowars, LLC, No. CV 18-1830 (C.D. Cal. Mar. 5, 2018).

205

Pepe the Frog, supra note 203 (tracing the alt-right evolution of the Pepe the Frog

meme).

206

Id. (citing W

ORLD

’

REATEST

ARTOONISTS

(2017)).

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began selling a campaign poster featuring Pepe, Furie sued Jones.

Though Jones and Infowars asserted many defenses to the infringe-

ment claim, including Furie’s abandonment or implied license of his

use it freely online, the district court held that Furie’s infringement

claim withstood the defendants’ motion for summary judgment.

207

few months later, the parties settled the lawsuit, and Infowars agreed

to turn over its profits from the poster and cease selling anything fea-

turing Pepe the Frog.

208

Pepe the Frog

209

(left), and Alex Jones Poster Featuring Pepe the Frog

210

(right)

Success Kid, discussed above, had a related experience in which

Success Kid’s mother demanded that then-Congressman Steve King

stop using the Success Kid meme (shown below using the meme for

fundraising purposes), arguing copyright infringement.

211

She stated

that King—whom she thought displayed bigotry and whom she called

“vile”—was antithetical to the Success Kid meme, which “is about

207

Furie v. Infowars, LLC, 401 F. Supp. 3d 952, 969–78 (C.D. Cal. 2019).

208

Martin Macias, Jr., Infowars Settles ‘Pepe the Frog’ Spat for $15,000, C

OURTHOUSE

EWS

ERV

. (June 10, 2019), https://www.courthousenews.com/infowars-settles-pepe-the-

frog-spat-for-15000 [https://perma.cc/BTS6-YL2S].

209

Pepe the Frog, supra note 203.

210

Benjamin Sutton, Artist Who Created Pepe the Frog Sues InfoWars for Copyright

Infringement, H

YPERALLERGIC

(Mar. 6, 2018), https://hyperallergic.com/430717/pepe-the-

frog-artist-sues-infowars-copyright-infringement [https://perma.cc/WJ2G-59RZ].

211

Paul Brennan, Success Kid’s Latest Success? Shutting Down Steve King, L

ITTLE

ILLAGE

(Jan. 30, 2020), https://littlevillagemag.com/success-kids-latest-success-shutting-

down-steve-king [https://perma.cc/6YFX-ALSP].

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498 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

positivity and celebrates achievement,”

212

further arguing that “big-

otry is just the antithesis of what we want to be the association with

the meme.”

213

Steve King’s Use of Success Kid

214

examples show, have been brought mostly due to commercialization

or undesirable messages. Yet the threat remains of broader assertions

against run-of-the-mill meme users.

215

Consider Getty Images, which

demanded over $800 from a German technology blog for using a pen-

guin photograph at the base of the successful Socially Awkward

Penguin meme (shown below).

216

After the claim received news cov-

erage that was unfavorable to Getty,

217

Getty Images defended its

right to protect its copyright interests.

218

The blog paid up, but even

212

@LaneyMG, T

WITTER

(Jan. 27, 2020, 3:50 PM), https://twitter.com/laneymg/status/

1221898247461056514 [https://perma.cc/BY62-2PPT]; Brennan, supra note 211.

213

Alan Yuhas, Mother of ‘Success Kid’ Demands Steve King Stop Using His Meme,

N.Y. T

IMES

(Jan. 28, 2020), https://www.nytimes.com/2020/01/28/us/politics/steve-king-

success-kid-meme.html [https://perma.cc/LG3S-LLS5].

214

Id.

215

See Neda Ulaby, Will Posting Memes or Pro Wedding Pics Land You in Copyright

Small Claims Court?, NPR (Mar. 12, 2021), https://www.npr.org/2021/03/12/957054009/will-

posting-memes-or-pro-wedding-pics-land-you-in-copyright-small-claims-court [https://

perma.cc/92XB-6LHJ].

216

Socially Awkward Penguin, K

NOW

OUR

EME

, https://knowyourmeme.com/

memes/socially-awkward-penguin [https://perma.cc/W4CL-MNPN].

217

See, e.g., Mike Masnick, Getty Images Goes Copyright Trolling After a Meme

Penguin (Sept. 8, 2015), https://www.techdirt.com/articles/20150908/00155432189/getty-

images-goes-copyright-trolling-after-meme-penguin.shtml [https://perma.cc/3GJX-LAQW]

(referring to Getty Images’ behavior as “particularly stupid” and “absolutely ridiculous”).

218

Kevin Collier, Getty Claims Copyright on Socially Awkward Penguin, Forces Site to

Pay $868, D

AILY

(May 28, 2021), https://www.dailydot.com/unclick/socially-awkward-

penguin-meme-getty-lawsuit [https://perma.cc/R7UZ-B6L9] (quoting a Getty

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though Getty Images asked that the settlement be kept confidential,

the blog posted about the demand and how unreasonable it thought

the terms were.

219

The blog also created a new version of the penguin

meme (shown below) that does not use the Getty Images penguin and

encouraged others to use it to avoid a claim against them.

220

Techdirt

referred to Getty Images’s behavior as “shaking down a blog” rather

than protecting copyright.

221

Techdirt’s article elaborated:

No one is using this meme because of the photograph itself, and as

can be seen by the alternative version, there’s nothing special about

this penguin that makes it especially necessary for this meme. It’s

just a crazy meme that got popular on the internet, not because of

Getty and not because of [the photographer].

222

Socially Awkward Penguin Meme

223

(left), and Blog’s Substitute Meme

224

(right)

spokesperson, who stated the company “believe[s] in protecting copyright and the

livelihoods of photographers and other artists”).

219

Getty Images Demands License Payment for Awkward Penguin!,

GET

IGITAL

https://www.getdigital.de/blog/getty-images-wants-license-fees-for-the-awkward-penguin-

meme [https://perma.cc/FL5Q-EVUV] (“[T]he Awkward Penguin is not just a random

image we stole from Getty’s database, but one of the most well[-]known internet memes.

Therefore the question arises why obviously no one in the whole internet knows that the

image right of this penguin [is] property of a picture agency.”).

220

Id.

221

Masnick, supra note 217.

222

Id.

223

Socially Awkward Penguin, supra note 216.

224

Getty Images Demands License Payment for Awkward Penguin!, supra note 219.

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500 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

2. Credit

225

Some meme creators choose to seek credit from copyists rather

than pursue copyright infringement claims against them. The most

notorious example of this involves the Instagram user FuckJerry, also

known as Elliot Tebele, who has become infamous for his involvement

in promoting the failed Fyre Festival.

226

FuckJerry’s Instagram

account mainly posted jokes and memes to its 14.3 million followers,

but also made money from sponsored posts.

227

Comedians and meme

creators became upset upon realizing that the account would post

their jokes and memes to advertise products without creator credit.

228

Many of them asked for credit or, in the alternative, for deletion of

the copied content. As shown in one example below, FuckJerry simply

responded, “Shut up.”

229

After these requests went nowhere, a number of copied come-

dians and memists banded together to shame FuckJerry and cause the

account to lose its lucrative followers. They initiated the hashtag

225

#fuckfuckjerry Meme, M

(Feb. 2, 2019), https://me.me/i/unfollow-fuckjerry-

they-have-a-history-of-stealing-peoples-comedy-57837f237c804c25b8fa6705dc10228c

[https://perma.cc/AC6S-3EPV].

226

Meghan O’Keefe, What Is F*ckJerry? Why Hulu and Netflix Are Battling over This

Company’s Role in the Fyre Festival Scam, D

ECIDER

(Jan. 15, 2019), https://decider.com/

2019/01/15/fyre-festival-fuck-jerry [https://perma.cc/VLQ2-4AAF].

227

Ashley Carman, Comedians Are Coming for One of Instagram’s Biggest Joke

Aggregators, V

ERGE

(Feb. 1, 2019), https://www.theverge.com/2019/2/1/18206914/fuckjerry-

jerry-media-comedian-backlash-joke-stealing-vulture [https://perma.cc/B6N4-VPD8].

228

Id.

229

#FuckFuckJerry, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/events/

fuckfuckjerry [https://perma.cc/F62F-YPMV].

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#fuckfuckjerry and asked the public to unfollow the account.

230

After

Comedy Central decided to pull its advertising from FuckJerry in

response to this public response, Tebele apologized and promised to

do better with regard to conferring credit when using others’

content.

231

Example of Request to FuckJerry for Credit

232

230

Id.; Megh Wright, How the #FuckFuckJerry Movement Was Born, V

ULTURE

(Feb. 6,

2019), https://www.vulture.com/2019/02/fuck-jerry-instagram-comedians-unfollow-

campaign-elliot-tebele.html [https://perma.cc/3DR5-9HH4].

231

Nick Statt, Fuckjerry Founder Apologizes for Stealing Jokes and Pledges to Get

Creator Permission, V

ERGE

(Feb. 2, 2019), https://www.theverge.com/2019/2/2/18208446/

fuckjerry-elliot-tebele-meme-joke-aggregator-repost-new-policy-change [https://perma.cc/

7J2J-5LFY].

232

#FuckFuckJerry, supra note 229.

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502 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

3. Licensing

233

As the previous Sections on litigation and credit-seeking imply,

there is also some licensing market for memes, even though most

memes are copied and used entirely freely. Licensing tends to be by

meme creators to established businesses, as Success Kid’s mother sug-

gested.

234

There is enough public expectation that memes will be

licensed by businesses such that when T-Mobile aired an ad during the

Super Bowl riffing on a viral meme (shown below), viewers were out-

raged by this copying, as shown in one example below, until the CEO

tweeted that the meme was licensed.

235

233

I Am Once Again Asking for Your Financial Support, K

NOW

OUR

EME

, https://

knowyourmeme.com/memes/i-am-once-again-asking-for-your-financial-support [https://

perma.cc/9S73-S95S].

234

See supra text accompanying note 198.

235

See Jazmin Duribe, T-Mobile’s Super Bowl Ad Was Accused of Ripping Off a Viral

Meme, P

UZZ

(Feb. 4, 2019), https://www.popbuzz.com/tv-film/news/t-mobile-super-

bowl-commercial-2019-meme [https://perma.cc/KJ4Y-ZXKL] (compiling examples of

public outrage over the T-Mobile tweet).

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Original Meme

236

(left), and Public Outrage over T-Mobile Ad

237

(right)

T-Mobile CEO Tweet

238

Now that we have explored memes as a matter of definition, their

contribution to society, and how their protection has been asserted

within the existing copyright ecosystem, we turn to analyze how

memes in fact upend copyright’s core assumptions.

236

@DecentBirthday, T

WITTER

(Dec. 14, 2017, 12:25 PM), https://twitter.com/

decentbirthday/status/941358477779329024 [https://perma.cc/NL9L-TU4A].

237

Raj Mahal (@RajMahal06), T

WITTER

(Feb. 3, 2019, 8:44 PM), https://twitter.com/

RajMahal06/status/1092237322974871554 [https://perma.cc/NZJ7-76UE].

238

John Legere (@JohnLegere), T

WITTER

(Feb. 3, 2019, 9:50 PM), https://twitter.com/

JohnLegere/status/1092254115965460480 [https://perma.cc/ULX8-FAE2].

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504 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

III

EMES

PEND

OPYRIGHT

’

OTIONS OF

REATIVITY

, C

OMMERCIALIZATION

AND

ISTRIBUTION

239

Just as Ben Shapiro, the conservative political commentator, is

asserted online to “destroy” every liberal concept and person he

opposes, so too do memes threaten the core principles of copyright.

As we explore below, memes pose a fundamental challenge to copy-

right law by violating copyright’s central tenets of creativity, commer-

cialization, and distribution, which we explored in Part I. Whereas

creativity, memes, a paradigm of contemporary creativity,

240

owe their

very existence to limitless, unauthorized, viral copying.

239

Ben Shapiro DESTROYS Liberals

NOW

OUR

EME

, https://

knowyourmeme.com/memes/ben-shapiro-destroys-liberals [https://perma.cc/KJZ9-5WR2].

240

See supra Section II.B.

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A. The Norms of Copying and Transformation

241

Whereas copyright law envisions an author who wants to fend off

unauthorized copying,

242

meme creators want just the opposite: They

want their work to go viral, to be copied and remixed as much as

possible.

243

They want to lose control of their work.

244

241

Mr. Bean, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/subcultures/mr-

bean [https://perma.cc/PKB4-9NRR].

242

See supra Part I.

243

See supra Sections II.A–B.

244

But see infra notes 420–23 and accompanying text.

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506 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

1. Copying

245

Memes turn a central pillar of copyright theory on its head. In

previous work, we explored ways in which unauthorized copying can

surprisingly stimulate the market for an underlying work rather than

undercut it, thereby enriching the infringed-upon party.

246

This phe-

nomenon is surprising because it directly defies a fundamental pre-

mise of copyright law, that unauthorized copying harms the market

for original works and must be prohibited in order to incentivize crea-

tion.

247

Memes exemplify this phenomenon in which unauthorized

copying helps rather than harms the original creator.

245

Success Kid / I Hate Sandcastles, supra note 196.

246

Adler, Fair Use, supra note 46 (exploring examples where unauthorized copying in

art does not harm, and may even bring market benefits to, an original artist); Adler, Why

Art Does Not Need Copyright, supra note 22, at 318–20 (exploring how unauthorized

copying in art can bring economic benefits to original creators); see Adler & Fromer, supra

note 47, at 1508–10 (providing an example of how copying might stimulate rather than

undercut the market for the original work); Jeanne C. Fromer, Market Effects Bearing on

Fair Use, 90 W

ASH

. L. R

. 615, 616 (2015) (arguing for the assessment of market benefits

as well as harms in fair use law); accord Kristelia Garc´ıa, Monetizing Infringement, 54 U.C.

AVIS

L. R

. 265 (2020) (exploring how rightsholders can monetize being infringed

upon).

247

See supra Sections I.A–C. But cf. Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183,

1206–08 (2021) (analyzing the effect of Google’s use on Oracle’s market by pointing not

just to harms, but also to benefits).

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In fact, memes depend for their very existence on unauthorized

copying. Quite simply, a meme does not even come into being until it

has been repeatedly copied.

248

thorized copying threatens to usurp the market for an original, but in

memes, copying is what creates the value of the original in the first

place.

249

In this new environment, creators therefore create works

with an eye to inviting copying rather than warding it off. Virality is

the goal; the prospect of being copied is the incentive.

250

This is true

not only of meme creators, but many creators in the digital environ-

ment, who understand that if images or clips of their works become

memes, this will ultimately add value to the original work or to

whatever else the creator may be marketing.

251

Nothing in copyright

theory can describe this or even fathom it.

Consider Drake. His megahit music video for his song “Hotline

Bling” (a still of which is pictured below) spawned endless memes,

252

to the point where the proliferation of memes it inspired became a

story in its own right. The “Hotline Bling” story was more than a

social media phenomenon. Traditional media outlets like USA Today

and Time wrote articles about the best “Hotline Bling” memes.

253

The

memes bled into real life: A football player for the Baltimore Ravens

248

See supra Section II.A.

249

Cf. infra Section V.C (discussing this phenomenon in the context of non-fungible

tokens (NFTs)).

250

Pamela Vaughan, How to Make a Meme That Will Make People Cry (with Laughter),

UBSPOT

(June 12, 2018), https://blog.hubspot.com/blog/tabid/6307/bid/33363/

memejacking-the-complete-guide-to-creating-memes-for-marketing.aspx [https://perma.cc/

ZS2T-4R2Q] (discussing the marketing technique of “memejacking” and how to optimize

marketing memes for social sharing to enable as much copying as possible). See generally

Adam Lonnberg, Pengcheng Xiao & Kathryn Wolfinger, The Growth, Spread, and

Mutation of Internet Phenomena: A Study of Memes, R

ESULTS

PPLIED

ATHEMATICS

May 2020 (analyzing different models for tracking and explaining meme virality,

popularity, and behavior).

251

Connor O’Brien, Case Study: How Artists and Songs Go Viral, EDMP

ROD

(Feb. 24,

2021), https://www.edmprod.com/case-study-how-artists-and-songs-go-viral [https://

perma.cc/W4PN-TPWV]. Even creators who do not seek to be copied have benefited

economically from being reproduced. Adler, Why Art Does Not Need Copyright, supra

note 22, at 314–20 (exploring examples of creators such as the Suicide Girls, an alt-porn

collective, whose work gained in value after artist Richard Prince made unauthorized

copies of it in his art series called “New Portraits”).

252

We create one such “Hotline Bling” meme below in Section IV.A.

253

Eliza Berman, Drake’s ‘Hotline Bling’ Video Inspired Some Incredible Dancing

Memes, T

IME

(Oct. 20, 2015), https://time.com/4079654/drake-hotline-bling-dancing-

memes [https://perma.cc/9RGU-K6X9]; Maeve McDermott, The Best ‘Hotline Bling’

Drake Memes, from A to Z, USA T

ODAY

(Oct. 20, 2015), https://www.usatoday.com/story/

life/entertainthis/2015/10/20/best-hotline-bling-memes-drake/74267298 [https://perma.cc/

XX67-DQL8].

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508 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

copied Drake’s moves in his victory dance after kicking the winning

field goal in a game; players on other teams have done the same.

254

Still from Drake’s “Hotline Bling” Video

255

What is extraordinary is that Drake, seeking a smash hit,

designed the video to have exactly this result. As his partner and cho-

reographer explained, “[A]ll those memes and [mashups], he knew

that was going to happen!”

256

Writing in the New York Times, rock

critic Jon Caramanica explained how the video was designed to be

broken down into GIFs and screenshots to ensure it was copied and

reused.

257

He wrote, “[i]t’s less a video than an open source code that

easily allows Drake’s image and gestures to be rewritten, drawn over,

[and] repurposed.”

258

The relatively empty backgrounds of the video

function almost like a green screen built for remixes. And Drake’s

slightly dorky dance moves were also “more or less blank.”

259

Lacking

254

Jamison Hensley, Justin Tucker’s Celebration Dance Is a Shoutout to Drake, ESPN

LOG

(Nov. 1, 2015), https://www.espn.com/blog/baltimore-ravens/post/_/id/23253/justin-

tuckers-celebration-dance-is-a-shoutout-to-drake [https://perma.cc/E6FF-PPYE]; Nick

Schwartz, Mark Ingram Celebrates TD with Drake’s ‘Hotline Bling’ Dance, USA T

ODAY

(Oct. 25, 2015), https://ftw.usatoday.com/2015/10/mark-ingram-drake-dance-hotline-bling

[https://perma.cc/4NQG-BBYF]; Marissa Payne, Antoine Griezmann Sends France to Euro

Final, Dances like Drake, W

ASH

. P

OST

(July 7, 2016), https://www.washingtonpost.com/

news/early-lead/wp/2016/07/07/antoine-griezmann-sends-france-to-euro-final-dances-like-

drake [https://perma.cc/ZR8S-NQZG].

255

Drake, Hotline Bling, Y

UBE

, at 01:38 (Oct. 26, 2015), https://www.youtube.com/

watch?v=UXpDa-c-4Mc [https://perma.cc/W4KT-DWGF].

256

Lauren Nostro, Interview: Tanisha Scott Talks Choreographing Drake’s “Hotline

Bling” Video, C

OMPLEX

(Oct. 22, 2015), https://www.complex.com/music/2015/10/tanisha-

scott-interview-on-choreographing-drake-hotline-bling-video [https://perma.cc/EG7G-

AYYK] (quoting Drake’s collaborator Tanisha Scott).

257

Jon Caramanica, Drake: Rapper, Actor, Meme, N.Y. T

IMES

(Oct. 23, 2015), https://

www.nytimes.com/2015/10/24/arts/music/drake-rapper-actor-meme.html [https://perma.cc/

PS8W-9VUC].

258

Id.

259

Id.

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contemporary references and characterized by “small moves that

[Drake] repeats,” the music video presented readymade GIFs of

Drake for his copiers.

260

2. Transformation

261

Creators in meme culture not only hope that their works will be

copied; they also hope their works will be altered and changed in

unforeseen ways. Again, this creative goal violates basic assumptions

that inform copyright law. Whereas copyright law pictures a creator

who wishes to guard their work’s integrity

262

and who will license

derivative uses only if they meet the creator’s criteria, meme culture

envisions a creator who wants to lose control of their work and to

open it up to constant revisions, reuses, and misuses.

263

In this way, we

260

Id.

261

My Parents Are Dead / Batman Slapping Robin, K

NOW

OUR

EME

, https://

knowyourmeme.com/memes/my-parents-are-dead-batman-slapping-robin [https://

perma.cc/8AJ2-PHPM].

262

See supra Sections I.A–B; see also 17 U.S.C. § 106A(a) (granting “rights of . . .

integrity” to authors of visual art).

263

Legacy Russell, Amy Adler, B

OMB

. (Mar. 12, 2013), https://bombmagazine.org/

articles/amy-adler [https://perma.cc/M2Y3-2RR7] (“[D]igital culture [is] . . . where art is

put out in a way that invites its own re-working.”).

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510 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

might compare memes to certain instances of graffiti art: work that

exists to be written over, transformed, and revised.

264

B. The Creation of Value for Underlying Works Through

Copying

265

As just discussed, copying creates value for the underlying orig-

inal work or expression rather than detracting from it. Sharing memes

based on an underlying copyrighted image “helps ingratiate their

brand into the culture to have their work copied all around the

Internet.”

266

RealityGif, a website that posts images from numerous

reality television shows including The Real Housewives of Beverly

Hills,

267

has never received a request to take down content or pay for

copyrighted material, suggesting the underlying content owners

realize the promotional value that these meme spreaders generate for

the material.

268

In fact, one lawyer advises that if your image has been

turned into a meme, the first thing to consider instead of suing is

264

See infra Section V.A.

265

Money Cat Template,

IMGFLIP

, https://imgflip.com/memetemplate/131896771/Money-

cat [https://perma.cc/KG6Q-HAF3]; see also CashCats, K

NOW

OUR

EME

, https://

knowyourmeme.com/memes/cashcats [https://perma.cc/8WKF-9GKL] (explaining the

format of the “CashCats” type of meme).

266

Anna Rabe, Do Memes Violate Copyright Law?, L

, https://thelawtog.com/

memes-violate-copyright-law [https://perma.cc/GY38-64WN] (citation omitted).

267

Id.; see also supra Section II.B (discussing memes, including one based on a scene

from The Real Housewives of Beverly Hills).

268

Rabe, supra note 266 (commenting on how the decision not to send a takedown

request and request for payment for the use of copyrighted materials suggests that the

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“whether you might be able to turn the meme into a form of adver-

tising for your own business.”

269

C. Indirect Monetization of Works

270

with exclusive rights will encourage people to create expressive works

from which they can directly profit.

271

The meme economy subverts

that assumption because most meme creators do not directly earn

money by exercising copyright’s exclusive rights. Instead, they typi-

cally receive no monetary compensation for their creations or, if they

do, they profit only indirectly off a meme’s success.

Most people who create and share memes do so not to earn

money, but merely to engage with others on social media.

272

The main

reasons young people share memes is to make others laugh, to react to

something in conversation, to communicate how they are feeling espe-

cially when they feel words will not do, and to convey code to some-

body who will “get it.”

273

As one journalist explains, “[m]ost users

269

Id.

270

Agnes Harkness Winking, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/

agnes-harkness-winking [https://perma.cc/E6G8-BSKM].

271

See supra Section I.C.

272

See 3 Stats That Show What Memes Mean to Gen Z & Millennials, YP

ULSE

(Mar. 5,

2019), https://www.ypulse.com/article/2019/03/05/3-stats-that-show-what-memes-mean-to-

gen-z-millennials [https://perma.cc/UHH6-W6E8] (highlighting statistics regarding the

frequency and ubiquity of meme sharing across younger demographics, and presenting

survey data to show that the majority of meme sharers do so to elicit smiles, laughs, or

reactions (citing Q1 2018 YPulse Trend Report: Home Sweet Home, Talk the Talk, Ain’t

Nobody Got Time for That, YP

ULSE

(Mar. 30, 2018), https://www.ypulse.com/report/2018/

03/30/q1-2018-ypulse-quarterly-talk-the-talk-home-sweet-home-aint-nobody-got-time

[https://perma.cc/L87S-XFYA])).

273

Id.

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512 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

likely don’t have big plans to copyright their tweets or TikToks for any

reason, and many find a thrill in going viral.”

274

The many free meme

generators online help these users craft and adapt memes to share,

which they can easily do on a myriad of social media platforms.

275

The

prevalence of this sort of creativity thus challenges copyright’s core

assumption that copyright law is necessary to incentivize the creation

and distribution of expressive content.

A smaller but important group of meme creators and sharers

profit from memes, but almost never directly.

276

Even though they do

not charge others for access to or use of their memes, creators can

make significant money indirectly due to their success in creating and

sharing memes. In particular, meme creators and sharers can attract

loyal and significant numbers of followers based on their meme niche,

be it about parents, cats, science, law, or politics.

277

That in turn can

generate profit opportunities for these meme creators and sharers. For

example, in 2016, the FuckJerry Instagam account discussed earlier

278

was on track to make $1.5–3 million based on sponsored posts they

shared to their more than ten million followers by charging a fixed

cost plus a cost per follower.

279

These followers came for the freely

shared memes and also viewed the sponsored content, allowing

FuckJerry to profit indirectly. Similarly, well-known meme creators

have been hired by established businesses, such as Gucci, to create

memes to be copied and shared with the objective of capturing

consumers.

280

274

Jane C. Hu, The Legal Netherworld of Meme Accounts, S

LATE

(Aug. 8, 2019), https://

slate.com/technology/2019/08/copyright-law-meme-accounts-instagram-reposts.html

[https://perma.cc/CFS7-QBAJ].

275

See supra note 150 and accompanying text.

276

See, e.g., supra Section II.B (exploring the culture surrounding memes and situating

memes within the market of attention rather than a monetary market); cf. Vaughan, supra

note 250 (presenting a user guide for creating valuable memes, with objectives focused on

traffic, visibility, and virality, rather than profiteering). But see supra Section II.C.1

(discussing a few meme lawsuits focusing on copier profit-extraction); supra Section II.C.3

(commenting on how some—albeit a very select few—memes are licensed by larger

companies).

277

See, e.g., Jane, How to Make Money with Memes in 2021, T

HIS

AMA

LOGS

(Aug.

16, 2021), https://thismamablogs.com/make-money-with-memes [https://perma.cc/CPV4-

F7LA] (encouraging making memes that resonate with the maker’s audience by picking a

niche such as parenting or cat ownership).

278

See supra Section II.C.2.

279

Madeline Berg, How FuckJerry Wants to Go from Instagram to Empire, F

ORBES

(Apr. 8, 2016), https://www.forbes.com/sites/maddieberg/2016/04/08/how-fuckjerry-wants-

to-go-from-instagram-to-empire [https://perma.cc/5UDH-LU3B].

280

Kam Dhillon, Here’s How Much Money You Can Make with Memes,

IGH

NOBIETY

, https://www.highsnobiety.com/p/how-to-make-money-with-memes

[https://perma.cc/WV22-746G] (“While many devotees heralded the [Gucci] campaign as

the grizzly death of meme culture, for marketing teams everywhere the campaign proved

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May 2022] MEMES ON MEMES AND THE NEW CREATIVITY 513

As previously discussed, a select few creators—such as the cre-

ators of the Success Kid and Grumpy Cat—monetize their memes

through copyright licenses to traditional companies.

281

Yet this rar-

efied group operates in contrast to the rest of meme culture and

against the practices of even the most successful meme creators and

sharers. But even meme superstars who pursue lucrative licensing

opportunities generate these opportunities principally by allowing

their memes to be widely and freely shared, thereby defying the pro-

totypical copyright story.

D. Line Between Commercial and Non-Commercial Activity

282

Following from the different ways that business happens in the

meme economy is the observation that it is becoming harder to distin-

guish between commercial and non-commercial activity for the pur-

pose of fair use analysis.

283

As per the copyright statute, fair use turns

how the meme remains a largely untapped resource to cannibalize within our attention

economy.”); Jane, supra note 277.

281

See supra Section II.C.

282

Daily Struggle, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/daily-

struggle [https://perma.cc/T3AF-XK9B].

283

The law also sometimes distinguishes between commercial and non-commercial

activity with regard to infringement, but in limited ways. Specifically, with regard to

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514 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

in part on “the purpose and character of the use, including whether

such use is of a commercial nature or is for nonprofit educational pur-

poses.”

284

Courts have struggled mightily with whether a defendant’s

use is commercial. The Supreme Court has explained, “The crux of

the profit/nonprofit distinction is not whether the sole motive of the

use is monetary gain but whether the user stands to profit from

exploitation of the copyrighted material without paying the customary

price.”

285

That so-called explanation has mystified courts and scholars,

particularly because “profit from exploitation” seems inextricably tied

to using copyrighted work without paying.

286

This already difficult-to-draw line between commercial and non-

commercial use becomes even less precise in a meme economy in

which successful creators and sharers tend to profit only indirectly, if

at all, from their memes. It is very hard to determine, even notwith-

standing the already-confusing copyright doctrine on commerciality,

whether creators are engaging in commercial or non-commercial

exempts certain activities best described as nonprofit. See 17 U.S.C. § 110 (outlining

permitted displays or performances, providing they are of a non-commercial nature).

Moreover, the Audio Home Recording Act prohibits an infringement action “based on the

noncommercial use by a consumer of [an audio recording] device or medium for making

digital musical recordings or analog musical recordings.” Id. § 1008. This exception is fairly

limited, as Congress chose not to include home computers as such devices. Id. § 1001(3)

(specifying that a “digital audio recording device” means a device that is designed or

marketed “for the primary purpose of” making an audio recording); Recording Indus.

Ass’n of Am. v. Diamond Multimedia Sys. Inc., 180 F.3d 1072, 1078 (9th Cir. 1999) (finding

that computers are not digital audio recording devices given the legislative history of the

Audio Home Recording Act).

284

17 U.S.C. § 107(1).

285

Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 562 (1985).

286

See e.g., Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1262 (2d Cir. 1986)

(rejecting the holding in Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417

(1984), that any income-producing use presumptively falls outside of the fair use defense);

Thomas M. Byron, Past Hits Remixed: Fair Use as Based on Misappropriation of Creative

Value, 82 M

ISS

. L.J. 525, 567–68 (2013) (discussing how the focus on commercial nature

was once—but is no longer—“effectively dispositive” in the fair use inquiry); Igor Slabykh,

Ambiguous Commercial Nature of Use in Fair Use Analysis, 46 AIPLA Q.J. 293, 317–19

(2018) (arguing that the “customary price” approach endorsed by Harper & Row is the

most fair definition of commerciality). This unresolved tension may explain why courts

tend to discount the importance of commerciality to fair use (though when courts conclude

a defendant’s use is non-commercial, they are apt to find fair use). Barton Beebe, An

Empirical Study of U.S. Copyright Fair Use Opinions, 1978–2005, 156 U. P

. L. R

. 549,

600–03 (2008) (tracking the courts’ attention to the commerciality inquiry when ruling on

fair use, and noting that while not consistent, the commerciality inquiry of Sony persists).

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activity.

287

This haziness might make fair use determinations in this

context yet less predictable.

288

E. Breakdown of Idea-Expression Distinction

289

Memes break down copyright law’s assumptions further by laying

bare the lack of distinction between idea and expression, that distinc-

tion being a central tenet of copyright law.

290

Consider the Mocking

SpongeBob meme shown above. Under traditional copyright analysis,

the image itself (not to mention the text superimposed on it) is classic

protectable expression. Yet meming an image can transform that

expression into an idea. In the context of the Mocking SpongeBob

meme, the image represents “a mocking tone towards an opinion or

point of view.”

291

The presence of that image now indicates that idea,

either with or without accompanying text, perhaps even more than it

conveys the image as expression.

292

To the extent that this SpongeBob

287

Compare Sony, 464 U.S. at 448–49 (ruling that “time-shifting [by recording

broadcast television programs on a video cassette recorder] for private home use must be

characterized as a noncommercial, nonprofit activity”), with Harper & Row, 471 U.S. at

562 (holding that a nonprofit news publication engages in commercial behavior in its news

reporting); cf. Lantagne, supra note 107, at 416–17 (“[C]ommercial use on the internet—

especially on social media—can be a complicated question.”).

288

Compare Deidr ´e A. Keller, Recognizing the Derivative Works Right as a Moral

Right: A Case Comparison and Proposal, 63 C

ASE

W. R

SRV

. L. R

. 511, 520 (2012)

(finding fair use to be unpredictable), and Jason Mazzone, Administering Fair Use, 51 W

& M

ARY

L. R

. 395, 401 (2009) (same), with Michael J. Madison, A Pattern-Oriented

Approach to Fair Use, 45 W

. & M

ARY

L. R

. 1525, 1530 (2004) (thinking there are

patterns and coherence in fair use), and Pamela Samuelson, Unbundling Fair Uses, 77

ORDHAM

L. R

. 2537, 2541 (2009) (same).

289

Mocking SpongeBob, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/

mocking-spongebob [https://perma.cc/VG5L-KCWF].

290

See supra Section I.D.

291

Mocking SpongeBob, supra note 289.

292

“Why are there so many Spongebob memes?”, asks Time. Rachel E. Greenspan,

Your Comprehensive Guide to the Best Spongebob Memes Across the Internet’s Sea, T

IME

(Sept. 19, 2019), https://time.com/5647509/best-spongebob-memes [https://perma.cc/PZ2P-

7MV2]. In addition to SpongeBob’s evocation of nostalgia and ease of design, Matt

Schimkowitz—a senior editor at the magazine—argues that emotions reign supreme:

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516 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

image becomes synonymous with mockery, various people can use

this same image to represent “mocking” tones in a multitude of situa-

tions. Therefore, the image is now sometimes expression, sometimes

idea, or perhaps sometimes both simultaneously. This example reveals

a characteristic of memes writ large: memes break down copyright’s

idea-expression distinction, rendering it as nonsensical as SpongeBob

himself sometimes can be.

293

F. Scale and Pace of Copying

294

The ability to launch and spread a meme virally on a mass level

can happen in hours, as social media and other internet platforms are,

as Limor Shifman puts it, “‘express paths’ for meme diffusion.”

295

discussed earlier, viral memes are not only copied, but they are also

transformed.

296

A Gen Z-er studying memes writes that viral memes

“[T]he characters on Spongebob . . . are incredibly direct in what emotion they’re trying to

express,” with no real expressive subtlety. Id. SpongeBob is just his emotions, “which

makes it much easier for people online to use them essentially as emojis and share them to

express how they’re feeling about a particular subject.” Id. (quoting Matt Schimkowitz).

293

Cf. Lantagne, supra note 107, at 408 (“[M]emes are no longer pieces of creative

expression so much as they are the basic building blocks of cultural communication.”).

294

Very Fast,

IMGFLIP

, https://imgflip.com/meme/178062637/Very-Fast [https://perma.cc/

62KZ-2UZM].

295

HIFMAN

, supra note 96, at 18.

296

See supra Sections III.A–B.

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can have “thousands of variations and a huge online presence on

social media. If [a] meme does happen to go viral, this means that it

has diffused through society, or the Internet, and has been widely

recreated. This meme will be visible everywhere, from Facebook to

college professors’ lecture slides.”

297

They are copied and transformed

at an exponential pace, something that is easy through social media’s

facilitation of speedy cooption and virality, not like your grandfather’s

298

G. Staleness of Memes

299

What this scale and pace of copying also means is that innovation

in the world of memes is proceeding at a supersonic pace. Copyright’s

duration of an author’s lifetime plus seventy years

300

seems like a

misfit for memes that can hit it big and go stale all in the matter of

weeks.

301

Many memes decay with a quick half-life—on the order of

297

Madison, What Makes a Meme Go Viral?, M

EDIUM

(Jan. 21, 2018), https://

madisonicole.medium.com/meme-ology-studying-patterns-in-viral-media-f1931b3d1c7e

[https://perma.cc/6DV6-YVLX].

298

For a look at what copying looked like in a pre-internet era, see Stephen Breyer, The

Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer

Programs, 84 H

ARV

. L. R

. 281 (1970).

299

Distracted Boyfriend, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/

distracted-boyfriend [https://perma.cc/9FXC-LY6X].

300

17 U.S.C. § 302(a).

301

In their work regarding the fashion industry, Kal Raustiala and Chris Sprigman note

the quickened pace of copying—often seasonal—which leads to the fast obsolescence of a

trend followed by innovation to replace each dying trend. Kal Raustiala & Christopher

Sprigman, The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, 92

. L. R

. 1687, 1689–92 (2006). By comparison, the scale and pace of copying and

transformation of memes make the fashion industry look sluggish.

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518 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

days and weeks—leading new memes to rise up and take their

place.

302

H. Selective Enforcement

303

Another way in which memes upend copyright’s assumptions is

with regard to selectivity of enforcement. Recall that copyright law

permits owners to choose whether to license their exclusive rights and

to whom.

304

By default, then, very few people or entities are likely to

have express license to any of the copyright rights. The major excep-

tions are for open-source software, a work licensed by Creative

Commons,

305

or a work with a shrinkwrap license. With such a mass

license, the use of these works is restricted only by the use terms of

302

See Eileen Brown, The Maths Behind the Memes: Why We Share on Social Media,

ZDN

(July 25, 2017), https://www.zdnet.com/article/the-maths-behind-the-memes-why-

we-share-on-social-media [https://perma.cc/7K6Q-2TRR] (studying mathematically the

brief popularity-window of memes); Lonnberg, Xiao & Wolfinger, supra note 250

(modeling how memes “are spread rapidly by internet users, often for a relatively short

period of time”).

303

Pepe the Frog, supra note 203.

304

See supra Section I.F.

305

As explained by the organization itself, “Creative Commons is a nonprofit

organization that helps overcome legal obstacles to the sharing of knowledge and creativity

to address the world’s pressing challenges.” What We Do,C

REATIVE

OMMONS

, https://

creativecommons.org/about [https://perma.cc/RDS4-5WBY].

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the license, rather than the user’s identity. What unifies these excep-

tions is that they are offered on a take-it-or-leave-it basis uniformly to

everyone.

306

Meme licensing differs from these scenarios in terms of the selec-

tivity of enforcement. Writ large, copying and transforming memes is

tolerated and typically encouraged,

307

an opposite scenario from copy-

right’s assumed default.

308

Yet at the same time, some meme creators

employ almost surgical exclusion to prevent a handful of people or

groups whose messages they do not like from using their memes.

Recall Pepe the Frog’s creator deploying copyright to stop Alex Jones,

and Success Kid’s mother doing the same to stop Steve King.

309

these situations, only very few have no permission to use the copy-

righted work because of their views or message while all others can

use, copy, and transform the same meme freely, making this different

both from copyright’s assumed default and take-it-or-leave-it licenses.

I. The Centrality of the Meme, Not the Author

310

Another way in which memes undermine copyright’s core tenets

is that they decentralize the author

311

and instead center the meme

itself. Compare this situation with more traditional works like songs,

books, paintings, or movies. While not everyone can identify the

singer who recorded Hotline Bling, the author who wrote The Catcher

in the Rye, the painter who created Starry Night, and the director,

writer, and actors of Nomadland, many can and will associate such

306

For an exploration of these types of licenses side by side, see J

EANNE

C. F

ROMER

HRISTOPHER

PRIGMAN

, C

OPYRIGHT

: C

ASES AND

ATERIALS V

.3.0, at 654–65

(2021).

307

See supra Sections III.A–B.

308

See supra Section I.F.

309

See supra Section II.C.

310

Bye Felicia, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/bye-felicia

[https://perma.cc/PTY8-T3JG].

311

See supra Section I.G.

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520 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

works importantly with their respective authors. People understand

these works as shaped by the authors’ particular circumstances and

viewpoints.

312

Such author-centricity is even characteristic of many

works made for hire, such as software.

Many people are involved in a meme’s creation and spread:

Someone creates an underlying image used to make a meme, someone

turns it into a meme, and then others copy and transform that meme.

Indeed, copyright law might label many of these actors as authors.

313

But despite the possibility of legal authorship recognition, even the

most well-known memes, like Distracted Boyfriend,

314

are identifiable

not by any of these creators but rather are known as the meme and its

variations. This is true even when one can trace a meme’s spread to

particular individuals and identify the author of the underlying image,

as the Know Your Meme reference site sometimes does. Moreover,

authorship lacks centrality even though the multiple layers of contri-

butions offer potential opportunities for individual identification.

315

Memes are dissociated from their creators; authors rarely—if ever—

receive personal recognition. As literary scholar Marta Figlerowicz

explains:

[A]ny image or quip that becomes an internet meme begins as some

particular user’s act of self-expression. But if it is successful it

evolves into a piece of cultural syntax, cycling through many

people’s perspectives and becoming divorced from its original con-

text. Soon that original context—or any other single iteration of the

meme—matters little to its current or its fullest meaning. At its

most interesting, a meme is a cloud of variants and reuses, coming

alive in each reenactment but meaningful only when one thinks of

the abstraction at its center.

316

312

Cf. Mala Chatterjee, Understanding Intellectual Property: Expression, Function, and

Individuation 4–5 (Aug. 2, 2021) (unpublished manuscript) (on file with the New York

University Law Review) (making the case that works protected by copyright law are

individuated by author, making authorship central to these works).

313

See supra Section I.G.

314

See Distracted Boyfriend, supra note 299.

315

In this way, authorship is more profuse and arguably egalitarian than it once was.

Everyone is now an author, yet authorship matters less. Cf. Chatterjee, supra note 312

(positing that authorship of artistic works is central to copyright law as artistic works are

distinguished by the identity of their authors).

316

Marta Figlerowicz, It Me: The Trouble with Memes, Y

ALE

. (May 19, 2021),

https://yalereview.org/article/it-me [https://perma.cc/FK7F-4AV2]; accord Donovan, supra

note 118 (“Importantly, as memes are shared they shed the context of their creation, along

with their authorship. Unmoored from the trappings of an author’s reputation or intention,

they become the collective property of the culture. As such, memes take on a life of their

own.”).

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This aspect of memes is true to Richard Dawkins’s original con-

ception in The Selfish Gene.

317

Just as Dawkins theorized that living

creatures exist to transmit and propagate their genes, one might say

that authors exist to create, transmit, and copy memes.

318

That is not

necessarily to strip the agency from the humans involved in the crea-

tion and spread of memes,

319

but to recognize that memes stand and

thrive apart from their human creators and that these creators are less

identifiable than copyright law imagines authors would be.

320

The traditional copyright view is that the work is entirely

indebted to its author. The author is the “mastermind,” as the

Supreme Court said long ago, without whom the work would not

exist.

321

Indeed, the moral rights interpretation of copyright—in

Europe and also enshrined in American copyright law in the Visual

Artists Rights Act

322

—pictures the author’s relationship to the work

as even deeper.

323

The work of art is pictured metaphorically as the

artist’s child. As the Second Circuit explained, the parent/author

317

See supra notes 95–97 and accompanying text.

318

Cf. Figlerowicz, supra note 316 (“[B]oth genetic tendencies and cultural trends gain

their fullest expression on the level of large populations rather than individuals. And so

any particular self serves merely as a temporary means by which a gene, or a meme,

perfects itself and prolongs its survival.”).

319

See Henry Jenkins, A Meme Is a Terrible Thing to Waste: An Interview with Limor

Shifman (Part One), C

ONFESSIONS OF AN

-F

(Feb. 17, 2014), https://

henryjenkins.org/blog/2014/02/a-meme-is-a-terrible-thing-to-waste-an-interview-with-

limor-shifman-part-one.html [https://perma.cc/2HGL-DVLN] (emphasizing the meaning

and structures people build around memes).

320

In this regard, Kale Salad, an Instagram meme account, is an anomaly in seeking to

track down the origin of particular memes and credit the original meme creator. See Shelby

Black, Meet Kale Salad, the Meme Account Giving Creative Ownership Back to the Internet,

APER

(Feb. 7, 2017), https://www.papermag.com/meet-kale-salad-the-meme-account-

giving-creative-ownership-back-to-the-2245569929.html [https://perma.cc/QP9V-E9PS].

Even so, crediting the original meme creator fails to recognize the multiple people who

played an essential role in creating and contributing to a meme’s meaning and existence.

321

Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 61 (1884) (stating that

authorship “involves originating, making, producing, as the inventive or master mind, the

thing which is to be protected” (internal marks omitted)); see also Aalmuhammed v. Lee,

202 F.3d 1227, 1233 (9th Cir. 2000) (expanding on the “mastermind” approach in works

involving joint authorship).

322

17 U.S.C. § 106A (granting rights of attribution and integrity to authors of works of

“visual art”); see also Cyrill P. Rigamonti, Deconstructing Moral Rights, 47 H

ARV

. I

’

L.J. 353 (2006) (exploring the European origins of moral rights); Martin A. Roeder, The

Doctrine of Moral Right: A Study in the Law of Artists, Authors and Creators, 53 H

ARV

. L.

. 554, 556–57 (1940) (analyzing moral rights laws in Europe).

323

See Amy M. Adler, Against Moral Rights, 97 C

ALIF

. L. R

. 263 (2009) [hereinafter

Adler, Against Moral Rights] (exploring and contesting the central assumption in moral

rights law that artists, unlike other authors, have especially profound bonds to their

creations).

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522 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

“injects his spirit into the work.”

324

And the work must be preserved

exactly as the author intended it to be.

325

But in memes, as in so many creative works in digital culture, if

the creative work is the artist’s child, then we see what happens when

the child grows up and leaves home.

326

Now the work takes on a life

of its own; it becomes promiscuous, changing, and mutating, being

reworked by other authors and other memes it meets up with in the

digital landscape. Instead of being preserved just as the author/parent

envisioned, the work mutates, travels, and ultimately becomes parent

in its own right, giving birth to an endless array of works that use the

first work as a template for further creativity.

This view of the meme as a child who has grown up and left home

bears some relationship to the biological origins of the term “meme,”

in which the gene, like the work, retains agency. Indeed, there is

debate in memetics scholarship about how to conceive of human

agency in relation to memes: Does the meme, like a gene, control the

people who reproduce and disseminate it, or do human agents exert

power over the meme?

327

Whatever the answer, we can see that we

are a far cry away from the copyright’s vision of the author: the all-

powerful mastermind or parent, who controls the obedient work.

What memes contribute and how they depart from copyright law

reflects an ongoing progression of creativity in contemporary culture.

At the beginning of the twenty-first century, technologists touted Web

2.0 with its emphasis on user-generated content,

328

while legal scholars

worried that cheap-to-create, often amateur, content—frequently

posted on YouTube—was a poor fit for copyright law.

329

Now that the

324

Carter v. Helmsley-Spear, Inc., 71 F.3d 77, 81 (2d Cir. 1995).

325

E.g., Roberta Rosenthal Kwall, Inspiration and Innovation: The Intrinsic Dimension

of the Artistic Soul, 81 N

OTRE

AME

L. R

. 1945, 1972 (2006) (“[T]he right of integrity

guarantees that the author’s work truly represents her creative personality and is free of

distortions that misrepresent her creative expression.”); John Henry Merryman, The

Refrigerator of Bernard Buffet, 27 H

ASTINGS

L.J. 1023, 1041 (1976) (explaining that

viewers maintain an interest in “seeing, or preserving the opportunity to see, [a] work as

the artist intended it, undistorted and ‘unimproved’ by the unilateral actions of others”).

326

See Adler, Against Moral Rights, supra note 323, at 269.

327

HIFMAN

, supra note 96, at 12 (“[A] . . . fundamental controversy in memetics . . .

relates to the issue of human agency in the process of meme diffusion.”).

328

As one technology blog explains, “Web 2.0 refers to rich web applications, web-

oriented architecture, and social web.” Lipika, What Is Web 2.0?, ZN

IVE

LOG

(May

13, 2016), https://www.znetlive.com/blog/web-2-0 [https://perma.cc/C7Y2-DYAQ].

329

See L

AWRENCE

ESSIG

, R

EMIX

: M

AKING

RT AND

OMMERCE

HRIVE IN THE

YBRID

CONOMY

(2008); Olufunmilayo B. Arewa, YouTube, UGC, and Digital Music:

Competing Business and Cultural Models in the Internet Age, 104 N

. U. L. R

. 431, 449

(2010). See generally Tom W. Bell, The Specter of Copyism v. Blockheaded Authors: How

User-Generated Content Affects Copyright Policy, 10 V

AND

. J. E

. & T

ECH

. L. 841 (2008);

Daniel Gervais, The Tangled Web of UGC: Making Copyright Sense of User-Generated

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May 2022] MEMES ON MEMES AND THE NEW CREATIVITY 523

internet has advanced many versions to integrate—among other

things—smartphone-generated content and social-media interconnec-

tivity,

330

creativity has morphed as well to fit our dramatically changed

technological landscape. Many of the characteristics of memes we

have explored so far build on the creativity features of Web 2.0, yet

technological changes allow them to progress well beyond them.

Whereas with earlier online creativity, people copied pre-existing

commercial works and posted them on a platform like YouTube for

others to see, memes instead reflect a participatory creative culture, in

which people iterate on each other’s creative works, continuously

transforming them again and again into new versions.

331

Scholars from

over a decade ago who analyzed Web 2.0 explored how user-

generated content, drawn from pre-existing works, would often cause

no harm to the market for the underlying works. But even more than

causing no harm, the copying involved in memes actually creates value

for underlying works.

332

Whereas the amateur creativity of Web 2.0

was principally attributable to each creator, meme creativity has

decentered the author and often rendered attribution unlikely, if not

impossible.

333

Moreover, the scale of copying in memes proceeds at a

pace unknown even in Web 2.0.

334

In short, contemporary creativity

has shifted dramatically in the decade since legal scholars first consid-

ered the effects of digital technology on cultural production. This shift

defies many more of the fundamental expectations on which copyright

law and theory are based.

In all the ways explored in this Part—with regard to creativity,

commercialization, and distribution of works—memes break down

many core assumptions of copyright law. Given this disconnect

between copyright law and meme culture, we now turn to how copy-

right law should think about memes.

Content, 11 V

AND

. J. E

. & T

ECH

. L. 841 (2009); Debora Halbert, Mass Culture and the

Culture of the Masses: A Manifesto for User-Generated Rights, 11 V

AND

. J. E

. & T

ECH

L. 921 (2009); Steven D. Jamar, Crafting Copyright Law to Encourage and Protect User-

Generated Content in the Internet Social Networking Context, 19 W

IDENER

L.J. 843 (2010);

Edward Lee, Warming Up to User-Generated Content, 2008 U. I

. L. R

. 1459.

330

See Kris Spisak, Eras of the Web—Web 0.0 Through Web 5.0, B

. 2 C

MTY

. (Sept.

13, 2019), https://www.business2community.com/tech-gadgets/eras-of-the-web-web-0-0-

through-web-5-0-02239654 [https://perma.cc/35JF-R8FW] (defining the “Mobile Web” as a

new “Web 4.0”).

331

See supra Section II.B.3.

332

See supra Section III.B.

333

See supra Section III.I.

334

See supra Section III.F.

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524 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

HOULD

OPYRIGHT

HINK

BOUT

EMES

335

As we have shown, memes upend many of copyright law’s central

assumptions. Yet memes are creative works that fall within the scope

of copyright law, as original works of authorship fixed in a tangible

medium of expression.

336

Creators deemed to be authors pursuant to

copying and transforming their works.

337

As such—and as particularly

exemplified by the Socially Awkward Penguin scenario detailed previ-

ously—we think that applying copyright law as is to memes is dan-

gerous if one wants to preserve meme culture.

338

Because copyright

law currently covers memes, it enables the assertion of infringement

claims in ways that can destroy meme culture precisely because of the

multiple mismatches just explored. We think that these mismatches

ought to be taken into account in determining whether and how to

apply existing copyright law to memes, how to modify the applicable

335

Running Away Balloon, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/

running-away-balloon [https://perma.cc/XS4S-QFJH].

336

See supra note 6 and accompanying text.

337

See supra Part I.

338

See supra Part II.

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May 2022] MEMES ON MEMES AND THE NEW CREATIVITY 525

legal regime, or—ultimately—whether any governing legal regime is

ever appropriate.

A. Keep Copyright Law Away from Memes?

339

Over its centuries, copyright law has seen many new media forms

and technologies of distribution develop, including photography,

motion pictures, television, VCRs, search engines, and social media.

In turn, Congress and courts have contended with whether and how to

apply existing copyright rules to these new forms.

340

Many of these

new forms are swept into copyright law, sometimes evaluated under

pre-existing rules and other times under modified rules.

339

Drakeposting

NOW

OUR

EME

, https://knowyourmeme.com/memes/

drakeposting [https://perma.cc/6EFW-PXKD].

340

E.g., Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884) (photography);

Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984) (VCR); Cartoon

Network LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) (DVR); Perfect 10, Inc. v.

Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) (search engine); Goldman v. Breitbart

News Network, LLC, 302 F. Supp. 3d 585 (S.D.N.Y. 2018) (social media); Religious Tech.

Ctr. v. Netcom On-Line Commc’n Servs., Inc., 907 F. Supp. 1361 (N.D. Cal. 1995)

(internet); see also Jeanne C. Fromer & Jessica Silbey, Retelling Copyright: The

Contributions of the Restatement of Copyright Law, 44 C

OLUM

. J.L. & A

RTS

341, 370–71

(2021) (summarizing Congress’s expansions of copyrightable subject matter over time to

include musical compositions and photographs, among other things).

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526 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

At the same time, some expressively creative works—long-

standing forms as well as newer phenomena—sit outside of copyright

law. They do so for one of two reasons: Either these works are

excluded from protection by copyright’s rules or are protectable but

generally not challenged by the relevant creative community. Yet cre-

ativity flourishes in both contexts, yielding a rich set of expressive

works without reliance on copyright protection.

341

Studied categories

of works excluded from copyright protection where creativity pros-

pers include stand-up comedy,

342

cuisine and recipes,

343

and magic.

344

In general, works in these categories often fail copyright’s require-

ments of originality, fixation in a tangible medium of expression, or

not being a method.

345

Creativity also prospers without reliance on copyright law in

some spaces in which it is likely available, such as tattoos

346

and

makeup designs for clowns.

347

Such contexts in which copyright is

available but not asserted tend to be characterized by communal

norms against invoking copyright law. Instead creators rely on alter-

native norms to register or enforce “claims” of ownership.

348

Consider

tattoos: As Aaron Perzanowski explains, even though copyright law

can be invoked to enforce rights in tattoo designs, the tattoo commu-

nity instead relies upon its own norms—sometimes for copying, some-

times against—out of a shared “disdain for authority and a history of

harsh legal regulation that renders them generally hostile to the legal

system,” as well as a “sensitiv[ity] to consumer expectations.”

349

Rights enforcement in meme culture currently is closer to that of

tattoos than stand-up comedy or movies. That is, copyright law is gen-

erally available to protect memes but copyright claims are infre-

quently brought against meme copyists, transformers, and

341

See supra text accompanying note 21.

342

Oliar & Sprigman, supra note 21.

343

Buccafusco, supra note 21; Fauchart & von Hippel, supra note 21.

344

Loshin, supra note 21.

345

See 17 U.S.C. § 102(a) (“Copyright protection subsists . . . in original works of

authorship fixed in any tangible medium of expression.”); id. § 102(b) (“In no case does

operation . . . , regardless of the form in which it is described, explained, illustrated, or

embodied in such work.”). With respect to magic in particular, the creative act of “live

performance” cannot be copyrighted. Loshin, supra note 21, at 131.

346

Aaron Perzanowski, Tattoos & IP Norms, 98 M

INN

. L. R

. 511, 513 (2013).

347

David Fagundes & Aaron Perzanowski, Clown Eggs, 94 N

OTRE

AME

L. R

. 1313

(2019).

348

See, e.g., Perzanowski, supra note 346, at 513; Fagundes & Perzanowski, supra note

347, at 1318.

349

Perzanowski, supra note 346, at 515.

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May 2022] MEMES ON MEMES AND THE NEW CREATIVITY 527

distributors.

350

As long as this norm continues to hold, meme culture

and the creativity flourishing within it can carry on mostly unimpeded.

Yet norms that tend to tolerate copying and favor nonenforce-

ment of copyright are not always stable. Sometimes norm-shifting

occurs in response to a legal change. For example, although fashion

designs were long understood to be uncopyrightable or minimally

copyrightable due to their functional aspects,

351

the Supreme Court in

2017 established a more protective framework for copyrightability of

fashion designs.

352

Although it is still an open question whether copy-

right claims regarding fashion designs will significantly increase,

353

the

Supreme Court’s decision disrupted an equilibrium in the fashion

industry regarding copyright enforcement.

Norm shifts (and changes in copyright enforcement practices) can

affect the type of works that are created in the first place. Consider

the practice of sampling in hip hop. In decades past, the two most

common types of sampling were use of a single song segment—

whether or not repeatedly or recognizably—and a combination of

many song segments or elements.

354

This latter type of “mash up”

sampling, exemplified by the Beastie Boys’ widely-praised album

Paul’s Boutique,

355

has mostly been abandoned in favor of the former

350

See supra Section II.C.

351

E.g., Raustiala & Sprigman, supra note 301, at 1689.

352

Star Athletica, LLC v. Varsity Brands, Inc., 137 S. Ct. 1002, 1007 (2017) (holding that

“a feature incorporated into the design of a useful article” may be copyrightable if it

“(1) can be perceived as a two- or three-dimensional work of art separate from the useful

article and (2) would qualify as a protectable pictorial, graphic, or sculptural work . . . if it

were imagined separately from the useful article into which it is incorporated”). See

generally Barton Beebe, Star Athletica and the Problem of Panaestheticism, 9 UC I

RVINE

L. R

. 275 (2019); Christopher Buccafusco & Jeanne C. Fromer, Fashion’s Function in

Intellectual Property Law, 93 N

OTRE

AME

L. R

. 51 (2017); Christopher Buccafusco &

Jeanne C. Fromer, Essay, Forgetting Functionality, 166 U. P

. L. R

. O

NLINE

119 (2017);

Mark P. McKenna, Essay, Knowing Separability When We See It, 166 U. P

. L. R

NLINE

127 (2017); Rebecca Tushnet, Shoveling a Path After Star Athletica, 66 UCLA L.

. 1216 (2019).

353

Compare David E. Shipley, All for Copyright Stand Up and Holler! Three Cheers for

Star Athletica and the U.S. Supreme Court’s Perceived and Imagined Separately Test, 36

ARDOZO

RTS

& E

. L.J. 149, 174–76 (2018) (expecting an increase in claims), with

David Jacoby, ‘Star Athletica’ Three Years On, N.Y. L.J., Aug. 28, 2020 (expressing some

skepticism about such an increase).

354

Ryan Lloyd, Note, Unauthorized Digital Sampling in the Changing Music Landscape,

22 J. I

NTELL

. P

ROP

. L. 143, 153–54 (2014). For a more comprehensive typology of hip hop

sampling, see Amanda Sewell, A Typology of Sampling in Hip-Hop (May 2013) (Ph.D.

dissertation, Indiana University), https://hcommons.org/deposits/objects/hc:18432/

datastreams/CONTENT/content [https://perma.cc/24VD-BEM3].

355

See Nate Patrin, Beastie Boys Paul’s Boutique, P

ITCHFORK

(Feb. 13, 2009), https://

pitchfork.com/reviews/albums/12671-pauls-boutique [https://perma.cc/42VR-UFLZ]; How

the Beastie Boys Made Their Masterpiece, R

OLLING

TONE

(Mar. 12, 2013), https://

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528 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

type because of a few copyright rulings against samplers.

356

As Rolling

Stone put it, the Beastie Boys’ album “sampled everyone from the

Ramones to Mountain to the Funky 4+1 and stitched together song

fragments in a way rarely seen before or since.”

357

Even though copy-

right law was even murkier at the time about the need to license their

samples, the band had licensed the 105 songs sampled on the album

for $250,000.

358

After the adverse copyright rulings, sampling licenses

became costlier and were understood to be necessary (at least as a

practical matter for risk-averse record companies); it is estimated that

these licenses today would cost $20 million, a prohibitively expensive

price.

359

In this way, copyright law changed hip hop music, moving it

away from songs comprising interwoven mash-ups to those with a

single or limited number of samples, a more affordable practice.

360

Some have argued this result is good, as those who are sampled get

paid,

361

while some have argued the opposite in that it has stifled valu-

able creativity.

362

But nevertheless, these rulings have undeniably

changed the landscape of hip hop music.

In short, when copyright claims might plausibly be brought, non-

enforcement norms are unstable and can shift in response to even a

single legal ruling, leading to changes in the works created. If a culture

is worth preserving, as meme culture might be, leaving copyright law

to lurk in the background as a potential disruptor leaves the possibility

of significant alterations or curtailments of this culture. Depending on

one’s take on meme culture, perhaps this is a good thing or perhaps

this is a bad thing, but either way it should be contended with.

If one wants to preserve meme culture in the current copyright

regime, one is left with an unstable situation given the inconsistencies

between meme culture and copyright law’s premises. The most signifi-

cant barrier against norm destruction via copyright assertions could be

www.rollingstone.com/music/music-news/how-the-beastie-boys-made-their-masterpiece-

186788 [https://perma.cc/7MCN-DA93].

356

The most notable such ruling is Bridgeport Music, Inc. v. Dimension Films, 410 F.3d

792 (6th Cir. 2005), which held that there is no de minimis exception to infringement

liability for copying sound recordings.

357

OLLING

TONE

, supra note 355.

358

Casey C. Sullivan, How Litigation Changed Hip Hop Sampling, G

REEDY

SSOCIATES

(July 28, 2015), https://blogs.findlaw.com/greedy_associates/2015/07/how-

litigation-changed-hip-hop-sampling.html [https://perma.cc/5USB-BNVV].

359

Id.

360

Cf. Lloyd, supra note 354, at 154 (observing that, due to the imprecise statutory

guidance concerning music sampling, “the act of clearing a sample can be a convoluted and

expensive process for an artist”); Sullivan, supra note 358 (concluding that sample-heavy

music has become more difficult and expensive).

361

E.g., Terry Hart, License to Remix, 23 G

. M

ASON

L. R

. 837 (2016).

362

E.g., Lloyd, supra note 354, at 170 (arguing that increased litigation involving

unauthorized sampling will deter artists from crafting certain creative works).

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May 2022] MEMES ON MEMES AND THE NEW CREATIVITY 529

collective shaming upon those who opt to bring legal claims, as

occurred in the Socially Awkward Penguin meme dispute described

above.

363

Such shaming can help keep the copyright nonenforcement

norm relatively intact.

364

Even so, one must accept the deep instability

given the many disconnects between copyright law and meme culture.

As such, promotion of robust affirmative norms or changes to copy-

right law may be preferable to better harmonize the two spaces—

issues to which we now turn.

B. An Attribution Regime?

365

Attribution for meme creation, transformation, and distribution

is one possible norm that meme culture might take on as an alterna-

tive (or supplement) to copyright protection, though it is likely

unworkable. Indeed, as discussed above, attribution has already

reared its head in meme culture.

366

Credit for creative work is gener-

ally something creators consider desirable both for expressive and

363

See supra Section II.C.1.

364

We explore the power of shaming in the opposite direction—to enforce intellectual

property rights—in Adler & Fromer, supra note 47, at 1459.

365

Be Like Bill, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/be-like-bill

[https://perma.cc/AX82-9PFX].

366

See supra Section II.C.2.

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530 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

pecuniary reasons.

367

It can bolster a creator’s reputation, thereby

both generating a visible link between creators and their works and

providing more professional opportunities for these creators.

368

analyzed above, memes can lead to financial opportunities for their

creators,

369

and for that to happen, memes must be personally attribu-

table in one way or another. The attention-getting campaign against

Instagram user FuckJerry for meme attribution,

370

the Kale Salad

Instagram account that traces memes to their creators and provides

credit,

371

and the Know Your Meme reference site’s encyclopedic

tracking of memes all point to some hunger to credit memes to a

creator.

Attribution is less in tension with meme culture than copyright

law in general is,

372

but it still has some disconnects and impracticali-

ties. In particular, the fast pace of copying and spread of memes

373

might make it hard to attribute memes correctly to their creators.

There is so much creation, copying, and transformation constantly

occurring in meme culture—a culture in which the author is

decentered

374

—that it is hard, and maybe impossible, to know how

many and which creators to whom to attribute a meme. The cumber-

some nature of comprehensive attribution has been noted before with

regard to more traditional expressive works,

375

but the extent of this

concern is exponentially increased with memes because of the scale

and pace of development and creative input. Put another way, the col-

lective nature of authorship with regard to memes makes an attribu-

tion regime seem like a folly.

367

See Fromer, Expressive Incentives, supra note 12, at 1790–92.

368

Id.

369

See supra Section III.C.

370

See supra Section II.C.2.

371

See supra note 320.

372

Cf. Rebecca Tushnet, Payment in Credit: Copyright Law and Subcultural Creativity,

70 L

& C

ONTEMP

. P

ROBS

. 135, 137 (2007) (“[M]oral claims to attribution are widely

recognized in fandom, and attribution rights are far less disruptive to ordinary interpretive

practices than other kinds of moral rights.” (emphasis omitted)).

373

See supra Section III.F.

374

See supra Section III.I.

375

See Jane C. Ginsburg, The Right to Claim Authorship in U.S. Copyright and

Trademarks Law, 41 H

OUS

. L. R

. 263, 304 (2004); Rebecca Tushnet, Naming Rights:

Attribution and Law, 2007 U

TAH

L. R

. 789, 800–16 (2007).

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Sample Texts from Hillary Meme

376

Consider the Texts from Hillary meme that was popular in 2012,

in which a photograph of then-Secretary of State Hillary Clinton in an

airplane wearing sunglasses texting on her phone was juxtaposed with

another photograph of someone to hypothesize a text conversation

between them.

377

An example of the meme is shown above. Diane

Walker, upset that her photograph of Clinton was being used in the

meme, asked the initial meme creators to credit her for the photo-

graph on their website, which they did.

378

Yet even conventional

media sources reporting on attribution and other rights in the photo-

graph and meme lamented the difficulties in a broader photograph-

based meme attribution regime. Time noted, “we always aim to credit

photographers, promote their work and link back to the original

source, but today there are no clear rules to follow. (Case in point: we

don’t know where all the photos from Texts from Hillary, used in this

376

Texts from Hillary, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/texts-

from-hillary [https://perma.cc/9FFP-R7YU].

377

Id.

378

See Emily Heil, ‘Texts from Hillary’ Photographer Didn’t LOL—at First, W

ASH

OST

: B

LOG

(Apr. 11, 2012), https://www.washingtonpost.com/blogs/in-the-loop/post/texts-

from-hillary-photographer-didnt-lol-at-first/2012/04/11/gIQApNcZAT_blog.html [https://

perma.cc/WN5S-Q8QE].

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532 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

gallery, originated.).”

379

As this example shows, as attractive as attri-

bution might be as an alternative regime to copyright law, it might

prove too cumbersome and staid a mismatch for meme culture. The

attribution to a single author, the photographer of the underlying

image, fails to capture the complexity of authorship in the realm of

memes, where a work only becomes a meme if someone takes the

original image and turns it into a meme and others then copy and

transform it.

C. A Shortened Duration?

380

Another possibility to better align copyright law with meme cul-

ture is to create meme-specific copyright rules. One of the most

obvious changes would be to copyright duration, which is now typi-

cally the author’s lifetime plus seventy years.

381

As discussed previ-

ously, some judges and scholars have decried what they see as the

excessively long duration of copyright for traditional works in opposi-

tion to copyright’s aims.

382

Yet given the extraordinarily fast pace by

379

Feifei Sun, The Photograph That Has Everyone Texting Hillary Clinton, T

IME

(Apr.

10, 2012), https://time.com/3787649/texting-hillary-clinton [https://perma.cc/LA8L-LTSR].

380

Philosoraptor

NOW

OUR

EME

, https://knowyourmeme.com/memes/

philosoraptor [https://perma.cc/ERY9-3LMW].

381

See supra Part I.

382

See supra Section I.E.

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which memes become stale—on an order of days, weeks, or

months

383

— this critique applies with even greater force to memes. If

there is little to no exploitable value to a meme after this short dura-

tion, it makes no sense to keep copyright’s exclusive rights in effect

and prohibit uses of the meme. Therefore, it could be advisable to

curtail copyright duration to a maximum of a few months for memes,

as a utilitarian theory of copyright aims to key duration to the com-

mercially viable period of a work.

384

This change would correspond

better with what copyright aims to achieve: striking a balance between

providing incentives to creators to make valuable material in the first

instance and allowing society to access and use these materials.

385

Once the incentive to creators becomes near valueless because a work

is no longer economically exploitable, it makes little sense to deny

society access and use of creators’ works. Moreover, by shortening

ture is minimized to a more manageable time period.

386

Of course,

this assumes that copyright law’s exclusive rights create pecuniary

value during a meme’s productive period, an assumption we think

does not generally hold, as discussed above.

387

383

See supra Sections III.F–G.

384

See supra notes 73–76 and accompanying text. We do not necessarily think this

reasoning applies with the same force to the image underlying a meme and would not

propose curtailed duration for it.

385

See supra Part I.

386

However, shortening the copyright duration flies in the face of current treaty

obligations, which require a minimal duration much longer than that suggested here. See

Berne Convention for the Protection of Literary and Artistic Works art. 7(1), July 14, 1967,

828 U.N.T.S. 221.

387

See supra Sections III.B–C. The limited opportunities for monetization would

suggest that copyright law should not operate during a meme’s productive period either, a

possibility we explore above in Section III.A.

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534 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

D. A Narrowed Copyright Scope?

388

For similar reasons, it might also make sense to construe copy-

right scope more narrowly for memes than for other works. Scope can

be narrowed in several ways that put copyright law in better corre-

spondence with meme culture, thereby allowing more copying, trans-

formation, and distribution of memes to continue unthreatened by a

mismatched copyright law. We raise three of the most salient ways to

narrow scope below.

First, as discussed above, the underlying images used in memes—

which would ordinarily be protectable expression—tend to become

unprotectable ideas when used in memes.

389

take cognizance of this porous boundary between expression and idea

in the context of memes rather than reflexively protecting images used

in memes against meme creators, copyists, and transformers. Once

expression morphs into idea, protecting it can threaten others’ free

expression and creativity. One way to narrow copyright’s scope, then,

is to disallow protection for images that are used in memes, at least

whenever they are used in memes.

Another way in which copyright law might take cognizance of the

characteristics of meme culture is by recognizing that some memes

might lack authorship due to the author’s decentralization.

390

When

that is the case, memes should be denied protection as they are not

the requisite “works of authorship.”

391

While a meme might represent

“original intellectual conceptions” of its creator as doctrinally

388

Community, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/subcultures/

community [https://perma.cc/7MUK-EJH7].

389

See supra Section III.E.

390

See supra Section III.I.

391

17 U.S.C. § 102(a).

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May 2022] MEMES ON MEMES AND THE NEW CREATIVITY 535

required for authorship,

392

as a meme spreads, the creator’s concep-

tions can frequently dissipate into nothingness as a meme is absorbed

into culture.

393

in the context of memes not as something static that is either present

or absent, but as something that can be lost as a meme spreads

through society, thereby disqualifying copyright protection.

394

doctrine. This could be achieved by discounting commercial use as a

rebuttal to fair use for memes, given the fuzzy line between com-

merciality and noncommerciality in meme culture.

395

Additionally, as

Stacey Lantagne, David Tan, Angus Wilson, and others observe,

memes are transformative in their capacity to change the meaning of

or comment on their underlying images and preceding memes.

396

And

a work that is found to be transformative is frequently found to be a

fair use of a copyrighted work.

397

392

Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884).

393

See supra Section III.I. Stacey Lantagne makes a related argument, that memes can

lack the authorship copyright law requires because “a mutating meme scatters authorship

so widely that the resulting creative output is so effectively crowd-sourced as to be a de

facto common good outside of copyright protection.” Stacey M. Lantagne, Mutating

Internet Memes and the Amplification of Copyright’s Authorship Challenges, 17 V

PORTS

& E

. L.J. 221, 222 (2018). She argues this is consistent with courts’ attempts to

avoid outcomes with too many copyright authors. Id. at 229–33 (discussing, for example,

Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015) (en banc), in which the court held that

an actor held no copyright in her short scene in a movie).

394

Cf. J. T

HOMAS

ARTHY

, M

ARTHY ON

RADEMARKS AND

NFAIR

OMPETITION

§§ 12:25–12:29 (5th ed. 2021) (discussing how trademarks may become

generic as generic use of the mark spreads).

395

See supra Section III.D.

396

See Lantagne, supra note 107, at 414–15; David Tan & Angus Wilson, Copyright Fair

Use and the Digital Carnivalesque: Towards a New Lexicon of Transformative Internet

Memes, 31 F

ORDHAM

NTELL

. P

ROP

. M

EDIA

& E

. L.J. 864, 909–14 (2021); Elizabeth

Rocha, Case Note & Comment, Y U No Let Me Share Memes?!—How Meme Culture

Needs a Definitive Test for Noncommercial Speech, 28 D

AUL

J. A

, T

ECH

. & I

NTELL

ROP

. L. 37, 42 (2017); cf. Patel, supra note 111, at 252–54 (suggesting that memes support

cultural interchange, which ought to favor fair use).

397

See, e.g., Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1202–04 (2021); Campbell

v. Acuff-Rose Music, Inc., 510 U.S. 569, 578–83 (1994); see Beebe, supra note 286, at

603–06 (finding this effect of transformativeness in a comprehensive empirical study of

courts’ fair use decisions).

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536 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

E. Addressing Selective Enforcement

398

Whether or not copyright law is curtailed for memes, it is critical

to address the issue of selective enforcement, as well as the related

concern of whether a copyright owner implicitly licenses or abandons

distinctive in that the underlying image creator as well as subsequent

meme creators generally do not assert copyright claims against almost

anyone, though they occasionally seek to stop a selective few from

using their work for certain purposes, principally those that are com-

mercial or those they find politically unpalatable.

399

On the one hand,

this outcome seems to be nothing more than an extension of copy-

right’s grant of control to authors to decide who can and cannot use

their works. On the other hand, when almost everyone except a very

small select few cannot use a work, there are serious concerns for free

speech values.

Before turning to the significant attractions to and worries from

allowing such surgically selective enforcement, we first discuss

whether any plausible copyright owner in the meme chain might be

able to pursue a claim against a subsequent meme creator, distributor,

or transformer. That is, by acquiescing to the memeification of their

image, does a copyright owner implicitly license their work to anyone,

or abandon copyright in the work? Is it reasonable for anyone and

everyone to think they are free to use a meme without copyright

repercussion? If so, selective enforcement is a nonissue because copy-

right cannot be enforced in the first place.

As to implied copyright licenses, courts sometimes infer them

“when the circumstances . . . demonstrate that the parties intended

398

Mean Girls Victimized,

IMGFLIP

, https://imgflip.com/meme/25246414/mean-girls-

victimized [https://perma.cc/VCN6-RGZA]; see also Mean Girls, K

NOW

OUR

EME

https://knowyourmeme.com/memes/subcultures/mean-girls [https://perma.cc/86XE-

VUHU].

399

See supra Section III.H.

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May 2022] MEMES ON MEMES AND THE NEW CREATIVITY 537

that the work would be used for a specific purpose.”

400

While some

circuits have set out (somewhat circumscribed) multifactor tests to

assess the existence of a nonexclusive implied license, others have

looked to the totality of circumstances.

401

Either way, whether an

implied license exists is expectedly murky.

Abandonment is not much clearer. Unsurprisingly, because copy-

right protects a work of authorship—an abstraction rather than an

actual physical object—copyright abandonment is not a straightfor-

ward inquiry as compared to, say, a couch left on the sidewalk with a

sign indicating it is free to take.

402

Even so, the legal test for copyright

abandonment is the same as for chattel: intent to abandon and an

overt act demonstrating that intent.

403

An abandoned copyright

cannot be owned by someone new; instead, works once protected by

that copyright immediately and irrevocably fall into the public

domain.

404

The difficulty with abandonment, as Dave Fagundes and

Aaron Perzanowski explore, is that the doctrine is hazy, making it

hard to know precisely what constitutes abandonment.

405

Courts are

also unclear whether a copyright can be partially abandoned: For

example, can a copyright owner allow free distribution of derivative

works while nevertheless retaining exclusive rights in the realm of

commercial distribution?

406

As a general matter in copyright law, these doctrines are impre-

cise; with respect to memes, these doctrines are completely unsettled.

To get a sense of how creators might implicitly license their works or

abandon their copyright, consider again the infringement lawsuit

brought by Matt Furie, Pepe the Frog’s creator, against Infowars.

407

that case, the defendants claimed that Furie had abandoned his copy-

right based on public statements they characterized as indicating

Furie’s joy “about Pepe the Frog becoming a meme,” his inspiration

“by rampant unauthorized use of the character,” his lack of action

notwithstanding his awareness of third-party profiting, and his

400

ILLIAM

F. P

ATRY

, P

ATRY ON

OPYRIGHT

§ 5:131 (2021).

401

See 3 M

ELVILLE

B. N

IMMER

& D

AVID

IMMER

, N

IMMER ON

OPYRIGHT

§ 10.03[a][7] (2021); P

ATRY

, supra note 400, § 5:131.

402

See Dave Fagundes & Aaron Perzanowski, Abandoning Copyright, 62 W

. & M

ARY

L. R

. 487, 492–94 (2020) (attempting to make sense of abandonment doctrine in

403

See id. at 493.

404

Cf. Nat’l Comics Publ’ns, Inc. v. Fawcett Publ’ns, Inc., 191 F.2d 594, 599 (2d Cir.

1951) (recognizing that the lack of copyright notice affixation to a published work could

thrust that work into the public domain).

405

Fagundes & Perzanowski, supra note 402, at 540–52.

406

See id. at 549–52 (citing Micro Star v. FormGen, Inc., 154 F.3d 1107, 1114 (9th Cir.

1998)).

407

See supra Section II.C.1.

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538 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

unbothered acknowledgement that “he had lost control over the char-

acter.”

408

For instance, Furie told New York that he “realized that

Pepe is beyond my control . . . He’s like a kid, he grew up and now I

have to set him free to live his life.”

409

And when asked in an Atlantic

interview about how he felt about the alt-right adopting Pepe, Furie

responded:

My feelings are pretty neutral, this isn’t the first time that Pepe has

been used in a negative, weird context. . . . The internet is basically

encompassing some kind of mass consciousness, and . . . I just think

that people reinvent [Pepe] in all these different ways, it’s kind of a

blank slate. It’s just out of my control, what people are doing with it,

and my thoughts on it, are more of amusement.

410

But in response to the defendant’s rebuttal that such statements

amounted to the requisite intent and overt act to abandon any copy-

right interest in Pepe the Frog, Furie pointed to an interview in

Esquire in which he asserted that “Pepe the Frog is copyrighted by

me” and made other statements indicating a desire to enforce his cop-

yright.

411

Based on the statements, the district court ruled that there

was a dispute of material facts and denied summary judgment on

abandonment,

412

after which the case settled.

413

On the implied-

license defense, the court granted summary judgment to Furie, rea-

soning that Furie’s statements did not constitute an offer to contract

and there was no consideration.

414

The court’s reasoning indicates that it will be difficult, though

sometimes possible, to prove abandonment or implied license. It is

also more likely that copyright will be found to have been abandoned

or an implied license created with regard to memes rather than the

underlying images contained in memes. The circumstances of meme

culture lend themselves better to a conclusion that the creator wanted

their work to be copied, transformed, and distributed freely, whereas

no such understanding might sit in the background for creators of the

underlying images used in memes. But with abandonment and implied

license murkily available on the right set of facts, we now consider

how to analyze situations where copyright remains intact and the

owner is engaging in surgical selective enforcement.

408

Furie v. Infowars, LLC, 401 F. Supp. 3d 952, 965 (C.D. Cal. 2019).

409

Id. (alteration in original).

410

Id.

411

Id. at 966.

412

Id.

413

See supra Section II.C.1.

414

Furie, 401 F. Supp. 3d at 968–69.

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May 2022] MEMES ON MEMES AND THE NEW CREATIVITY 539

1. The Worry of Forcing Creators to Allow Universal Use

415

One can see the motivation behind granting copyright owners

control to decide who should be allowed to use their work.

416

Just as

parents want to ensure their children are left in good hands with a

caregiver, authors are frequently protective of their works. Economi-

cally, authors want to control who exercises copyright rights to make

sure that third parties will not undercut the market for the author’s

works.

417

Moreover, as a matter of moral rights, authors often want to

make sure that third parties are not using their works in ways that run

contrary to an author’s vision or brand.

418

To the extent that creation

is actually spurred through copyright law’s incentives, authors might

be reluctant to create were they to lose control over who can and

cannot license their works.

419

Telling an author that they must allow

anyone, including an organization they consider to be a hate or

extremist group, to use their work might feel akin to handing over

one’s baby so they can be indoctrinated and turned evil.

Indeed, recent incidents confirm that creators can feel this way.

For example, Matt Furie, in addition to asserting his creative owner-

ship of Pepe,

420

expressed his dismay at the alt-right having adopted

Pepe as a symbol in their memes. That Pepe—a “peaceful frog-

dude”—has been labeled a hate symbol and shared among racists and

415

Evil Toddler, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/evil-toddler

[https://perma.cc/H5RN-L9HQ].

416

See supra Section I.F.

417

Cf. Fromer & Lemley, supra note 83 (arguing that copyright law is centrally about

protecting creators from market substitutions).

418

See R

OBERTA

OSENTHAL

WALL

, T

OUL OF

REATIVITY

: F

ORGING A

ORAL

IGHTS

AW FOR THE

NITED

TATES

53–55 (2010).

419

See Fromer, Expressive Incentives, supra note 12.

420

See supra notes 407–14 and accompanying text.

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540 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

anti-Semites was, to Furie, “completely insane” and “a nightmare.”

421

He continued: “[T]he only thing I can do is see this as an opportunity

to speak out against hate. . . . I understand that it’s out of my control,

but in the end, Pepe is whatever you say he is, and I, the creator, say

that Pepe is love.”

422

Even further, Furie forewent economic opportu-

nities by ceasing to sell Pepe merchandise to avoid it being worn by

groups he found hateful.

423

The copyright owner’s interest in controlling who can use their

work, however, is not the full story. There are weighty interests on the

other side, especially when a copyright owner is engaged in surgical

selective enforcement, to which we now turn.

2. The Worry of Selective Silencing

424

When everyone but a handful of people or groups is permitted to

use an image in a meme or copy and transform a meme—something

that seems to be an extension of copyright’s allowance of selectivity—

421

Matt Furie, Pepe the Frog’s Creator: I’m Reclaiming Him. He Was Never About Hate,

IME

(Oct. 13, 2016), https://time.com/4530128/pepe-the-frog-creator-hate-symbol [https://

perma.cc/R5E2-GGNU].

422

Id. Not dissimilar is the pain actress Cindy Lee Garcia felt after her lines spoken in a

film—Innocence of Muslims—were redubbed to have her ask, “Is your Mohammed a child

molester?” Unbeknownst to Garcia, this film had an anti-Islam agenda and was not the

adventure story that was initially advertised to her. Garcia sued but lost her claim for

423

See Sam Thielman, Matt Furie on Life After Pepe the Frog: ‘You Have to Lead by

Example,’ G

UARDIAN

(Oct. 29, 2020), https://www.theguardian.com/books/2020/oct/29/

matt-furie-on-life-after-pepe-the-frog-lead-by-example-mindviscosity [https://perma.cc/

7S7L-CJ77]. This is not the only meme adopted by the alt-right. Alt-right groups have also

adopted brands, such as Fred Perry (for shirts), that quickly disowned them. Jon Jackson,

Marvel’s Punisher Problem, N

EWSWEEK

(Mar. 10, 2021), https://www.newsweek.com/

marvels-punisher-problem-1574579 [https://perma.cc/UBN2-5EWA].

424

Jon Stewart, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/people/jon-

stewart [https://perma.cc/W9MC-7Y7V].

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May 2022] MEMES ON MEMES AND THE NEW CREATIVITY 541

this creates a situation typically unseen in copyright law: Only a select

few are silenced from using a copyrighted work, rather than the his-

torically typical situation in which only a select few are allowed to use

a copyrighted work.

425

This circumstance creates worries heretofore

generally unseen in copyright law, principally to free speech values.

a. Nearly Everyone Gets to Use a Meme

426

Once a meme is created and begins to spread virally, many

people partaking in meme culture will copy, transform, or distribute

the meme. They will use it to participate in digital culture, communi-

cate their take on the meme, seek to fit in with various communities,

and try to get attention.

427

There might in fact be no better way to

accomplish these communicative and other goals online than through

using the meme. Social media platforms, and online culture more

broadly, give individuals a megaphone to accomplish their goals,

wherein each meme is akin to a personal mini-TED talk.

425

See supra Sections I.F, III.H.

426

Thanks for Coming to My TED Talk, K

NOW

OUR

EME

, https://

knowyourmeme.com/memes/thanks-for-coming-to-my-ted-talk [https://perma.cc/ZT88-

7NV9].

427

See supra Part II.

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542 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

b. Except a Select Few

428

Yet at the same time, a very select few might be singled out and

challenged under copyright law not to be able to use a meme. Pepe

the Frog is perhaps the most prominent example, but there have been

other copyright claims brought against figures that are politically

unpopular with certain copyright holders, such as Steve King,

429

Donald Trump, various pro-Trump memists, and alt-right figures.

430

addition, as discussed above, copyright holders in memes and images

used in memes have brought suit against a small number of commer-

cial uses of their works.

431

We think that such surgical selective enforcement raises free

speech concerns not usually present in copyright law. By invoking

wise) unpalatable from using a meme, copyright law can fall on the

wrong side of the balance between free speech and exclusive rights

preventing another from speaking.

In the past, the Supreme Court has rejected First Amendment

challenges to copyright law’s restriction of speech, holding that copy-

right law already “incorporates its own speech-protective purposes

428

Shut the Fuck Up, Liberal, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/

shut-the-fuck-up-liberal [https://perma.cc/TDC3-WKLH].

429

See supra Section II.C.1 (discussing the Success Kid image creator going after Steve

King).

430

E.g., Lawsuit Against Carpe Donktum over Pro-Trump Meme Dismissed, P

OST

ILLENNIAL

(July 9, 2021), https://thepostmillennial.com/lawsuit-against-carpe-donktum-

over-pro-trump-meme-dismissed [https://perma.cc/S3CM-74LX].

431

See supra Section II.C.1.

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and safeguards.”

432

creation and publication of new expression,”

433

but as the Court has

explained, there are also “First Amendment protections already

embodied” in copyright law.

434

In particular, the Court has identified

two built-in features of copyright law that act as First Amendment

checks: the idea-expression distinction and the fair use defense. As the

Court has explained, “copyright’s idea/expression dichotomy ‘strike[s]

a definitional balance between the First Amendment and the

protecting an author’s expression.’”

435

Furthermore, the fair use

defense “allows the public to use not only facts and ideas contained in

a copyrighted work, but also expression itself in certain

circumstances.”

436

Scholars have reasonably questioned the Court’s decision to

immunize copyright law from First Amendment scrutiny and instead

rely exclusively upon copyright’s internal safeguards, an approach not

taken with regard to other laws.

437

Either way, if courts deem memes

or their underlying images to be protected expression, and find cop-

ying is not excusable as fair use or otherwise,

438

this will allow copy-

right owners to engage in surgically selective enforcement in ways that

silence only a few. If memes are the communicative currency—and

indeed, for many, they currently are

439

—and because they serve as

ideas in critical ways—which ought to be unprotectable by copy-

right

440

—hyper-targeted enforcement against a select few is problem-

atic to free speech values. Of course, the forbidden few can use other

images or memes—assuming those are not held off limits to them

too—but that is beside the point when specific memes are the cultural

432

Eldred v. Ashcroft, 537 U.S. 186, 219 (2003).

433

Id.

434

Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985).

435

Id. at 556 (alteration in original) (quoting Harper & Row, Publishers, Inc. v. Nation

Enters., 723 F.2d 195, 203 (2d Cir. 1983)).

436

Eldred, 537 U.S. at 219–20; accord Golan v. Holder, 565 U.S. 302, 327–30 (2012).

437

E.g., Joseph P. Liu, Copyright and Breathing Space, 30 C

OLUM

. J.L. & A

RTS

429

(2007); Netanel, supra note 175 (arguing that while the courts have treated copyright law

anomalously, this stance is wrong and should be subject to First Amendment doctrine);

Alfred C. Yen, A First Amendment Perspective on the Idea/Expression Dichotomy and

MORY

L.J. 393 (1989). But see

Melville B. Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free

Speech and Press?, 17 UCLA L. R

. 1180 (1970) (presaging the Supreme Court’s

approach).

438

See supra Section IV.D.

439

See supra Sections II.A–B.

440

See supra Section III.E.

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544 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

currency.

441

Indeed, in the traditional First Amendment context of

government censorship, the Supreme Court explicitly noted that a

particular mode of expression might sometimes be necessary to

express an idea. As the Court explained in Cohen v. California: “[W]e

cannot indulge the facile assumption that one can forbid particular

words without also running a substantial risk of suppressing ideas in

the process.”

442

All in all, given that copyright law’s fundamental assumptions are

so mismatched with meme culture, if we assume meme culture is

worth preserving, it could prove dangerous to rest on the current

norm of copyright nonenforcement. Instead, it would be worth rejig-

gering copyright law to put it in better accordance with meme culture

and free speech values.

441

Cf. Fromer, Information Theory, supra note 63, at 92–96 (explaining how some

expression needs to be reused by others to extract the value copyright law is designed to

provide). Given that nearly everyone is permitted to use creative works in making and

sharing memes, the individuals later asked to desist might have reasonably relied on these

works being available to them, providing another reason to worry about surgically selective

enforcement.

442

403 U.S. 15, 26 (1971); accord FCC v. Pacifica Found., 438 U.S. 726, 773 (1978)

(Brennan, J., dissenting) (“The idea that the content of a message and its potential impact

. . . can be divorced from the words that are the vehicle for its expression is transparently

fallacious. A given word may have a unique capacity to capsule an idea, evoke an emotion,

or conjure up an image.”).

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EYOND

EMES

443

As we have shown, memes depart from several of the most basic

pillars of copyright theory.

444

But how significant an issue is this

departure? If memes are sui generis, a one-off exception to the prem-

ises of copyright law, then the problem is relatively contained. But we

think this is far from the case. Instead, the concern with memes signals

a much broader problem in copyright law and theory.

In our view, memes expose two profound problems in copyright

law and theory. First, before the advent of meme culture, scholars and

courts had already questioned several basic concepts in copyright law,

some of which are the very ones that memes have now pushed to their

limits.

445

In Part III, we argued that memes render nonsensical certain

pillars of copyright law, such as the idea-expression distinction, the

distinction between commercial and noncommercial uses in fair use,

and even the conventional notion of the author.

446

Meme culture has

now pushed these already problematic copyright principles to a

breaking point. Second, rather than a one-off exception to the prem-

ises of copyright law, memes are instead a prototype of a new mode of

creativity that is emerging in our contemporary digital era. Thus, the

443

Disaster Girl, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/disaster-girl

[https://perma.cc/RPQ7-XQZ5].

444

See supra Part III.

445

See, e.g., Netanel, supra note 64 (challenging the idea-expression distinction); notes

74–76 and accompanying text (questioning copyright’s duration); notes 89–90 and

accompanying text (attacking the author’s centrality within copyright).

446

See supra Sections III.D–E, III.I.

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546 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

problems we have explored with memes go to the core of copyright’s

role in advancing creativity.

We begin by exploring ways in which traditional works already

share certain aspects of meme culture. We then show how memes are

part of a broader shift in creativity in digital culture. Finally, we ana-

lyze the recent craze for non-fungible tokens (NFTs) as a reaction to

memes and to the post-rarity culture that they emblematize.

A. Traditional Works Can Be Like Memes

447

Traditional works fit copyright’s foundational assumptions much

better than memes do.

448

Nonetheless, certain aspects of memes that

we highlight in this Article were already present—to varying

degrees—in some creative works that preceded memes. Here we point

out a few ways in which traditional works could be reconsidered

through the lens of memes.

Most prominently, copying and repetition, so essential to memes,

have always been a part of creativity as evidenced by repeated motifs,

447

They’re the Same Picture, K

NOW

OUR

EME

, https://knowyourmeme.com/memes/

theyre-the-same-picture [https://perma.cc/L8TA-RMXW].

448

See supra Part I.

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May 2022] MEMES ON MEMES AND THE NEW CREATIVITY 547

themes, and allusions that characterize the literary tradition,

449

the

history of art,

450

music,

451

and many other creative practices.

452

For

example, we could reimagine the trope of the reclining Venus in art

history as a kind of proto-meme: an image on which artists rely

because it is immediately recognizable as part of a tradition of pre-

vious works, and yet one that artists transform with each individual

repetition. Consider the reclining Venus images below, from contem-

porary to Renaissance: Mickalene Thomas’s A Little Taste Outside of

Love,

453

which reimagined through the lens of race Manet’s

Olympia,

454

whose meaning in turn depended on its reference to

Titian’s Venus of Urbino,

455

which in turn had drawn on Giorgione’s

Sleeping Venus.

456

Whereas the Renaissance works depicted an ideal-

ized erotic goddess, Manet’s pictured a prostitute as Venus, prompting

the novelist Emile Zola to write, “When our artists give us Venuses,

they correct nature, they lie. Edouard Manet asked himself why lie,

why not tell the truth; he introduced us to Olympia, this fille of our

time, whom you meet on the sidewalks.”

457

Mickalene Thomas’s con-

temporary work repeats the trope while changing it again. As the

Brooklyn Museum describes the work, Thomas “turns the historic

nude on its head and ousts the white European woman from the bed

where she often lounges, attended by a black maidservant, in Western

art.”

458

449

As the literary critic Northrop Frye wrote in the mid-twentieth century, “Poetry can

only be made out of other poems; novels out of other novels.” N

ORTHROP

RYE

, Ethical

Criticism: Theory of Symbols, in A

NATOMY OF

RITICISM

: F

OUR

SSAYS

71, 97 (1957).

450

See Adler, Fair Use, supra note 46, at 568–69 (arguing that the history of art depends

on the longstanding tradition of borrowing from others’ works).

451

See Olufunmilayo B. Arewa, From J.C. Bach to Hip Hop: Musical Borrowing,

. 547 (2006) (arguing that the history of

music shows the continuity and importance of musical borrowing).

452

See Adler & Fromer, supra note 47, at 1529 (citing arguments that the history of art,

music, literature, and fashion depend on copying, emulating, alluding to, reworking, or

changing pre-existing works to create new ones).

453

Mickalene Thomas, A Little Taste Outside of Love, B

ROOKLYN

USEUM

(2007),

https://www.brooklynmuseum.org/opencollection/objects/5044 [https://perma.cc/Q2JK-

EC27].

454

Edouard Manet, Olympia, PBS: F

LASHPOINTS

(1865), https://www.pbs.org/wgbh/

cultureshock/flashpoints/visualarts/olympia_a.html [https://perma.cc/9LAJ-VMWW].

455

Titian, Venus of Urbino,L

ALLERIE

EGLI

FFIZI

(1538), https://www.uffizi.it/en/

artworks/venus-urbino-titian [https://perma.cc/5ZWW-KVLW].

456

Giorgione, The Sleeping Venus, W

IKI

(1508–1510), https://www.wikiart.org/en/

giorgione/the-sleeping-venus-1510 [https://perma.cc/U86J-B3L8].

457

Frits Andersen, Corpus Delicti: Zola’s Nana, Breton’s Nadja—Siamese Twins in the

Body of the Novel, in R

EINVENTIONS OF THE

OVEL

: H

ISTORIES AND

ESTHETICS OF A

ROTEAN

ENRE

79 (Karen-Margrethe Simonsen, Marianne Ping Huang & Mads

Rosendahl Thomsen, eds., 2004).

458

Thomas, supra note 453.

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548 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

Mickalene Thomas, A Little Taste Outside of Love

459

(left);

Edouard Manet, Olympia

460

(right)

Titian, Venus of Urbino

461

(left); Giorgione, Sleeping Venus

462

(right)

Similarly, in music, certain phrases of expression that have been

repeatedly alluded to and transformed can be thought of as meme-

like. We could characterize snippets of songs in hip hop as analogous

to memes—copies that conjure up a tradition of previous works while

at the same time altering and advancing that tradition. For example,

record producer and acclaimed DJ Mark Ronson has explored the

extraordinary persistence of one of the most sampled songs of all

time, “La Di Da Di” by Slick Rick & Doug E. Fresh.

463

Ronson shows

how it gave birth to a lineage of songs, including music by Snoop

Dogg, the Notorious B.I.G., and Miley Cyrus.

464

Some traditional works outside of meme culture also depart from

other copyright assumptions in ways that parallel the problems we

have explored with memes. For example, musicians have sometimes

engaged in surgically selective enforcement of copyright, objecting to

459

Id.

460

Manet, supra note 454.

461

Titian, supra note 455.

462

Giorgione, supra note 456.

463

See Mark Ronson, T

ALK

, How Sampling Transformed Music (Mar. 2014),

https://www.ted.com/talks/mark_ronson_how_sampling_transformed_music [https://

perma.cc/M76A-B9ZB].

464

Id. at 08:45–12:55.

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a song’s use by particular politicians while otherwise permitting broad

licensing.

465

These disputes, several of which arose for songs that

Donald Trump used at political rallies,

466

tended to focus on whether

the use of the musical works occurred pursuant to a blanket license

agreement.

467

Some musicians have sued directly for copyright

infringement in cases that ultimately turned on fair use.

468

For

example, Don Henley sued politician Charles DeVore, a Republican

candidate for the U.S. Senate in California, for using Henley’s songs

“The Boys of Summer” and “All She Wants to Do Is Dance” in two

political advertisements.

469

Another example of a longstanding art form outside of meme cul-

ture that bears some striking similarities to memes is graffiti.

470

memes, street art as a genre is ephemeral, fast-moving, and often col-

laborative; artists frequently expect others to write over their works,

rather than to preserve them exactly as is in perpetuity.

471

For

example, in a recent case involving 5Pointz, the celebrated New York

City graffiti site, the Second Circuit described the ethos of “creative

destruction” that characterizes graffiti.

472

As the court explained,

while some art at 5Pointz “achieved permanence,” most of it “had a

short lifespan and was repeatedly painted over.”

473

Indeed, street art

works sometimes result from frequent modifications (invited or not)

among artists who repeatedly alter and overpaint each other’s

465

See supra Sections III.H, IV.E. For one account of these disputes, see Danwill D.

Schwender, The Copyright Conflict Between Musicians and Political Campaigns Spins

Around Again, 35 A

. M

USIC

490, 492 (Winter 2017) (discussing Mike Huckabee’s use of

Eye of the Tiger song by Survivor without a license at a rally as well as Donald Trump’s

licensed but unwelcome use of Neil Young’s song Rockin’ in the Free World).

466

See generally Devon Ivie, The Ongoing History of Musicians Saying ‘Hell No’ to

Donald Trump Using Their Songs, V

ULTURE

, https://www.vulture.com/article/the-history-

of-musicians-rejecting-donald-trump.html [https://perma.cc/NL23-V4LD].

467

See Arlen W. Langvardt, Musicians, Politicians, and the Forgotten Tort, 27

ORDHAM

NTELL

. P

ROP

., M

EDIA

& E

. L.J. 429, 431, 433 (2017).

468

E.g., Henley v. DeVore, 733 F. Supp. 2d 1144 (C.D. Cal. 2010); Browne v. McCain,

611 F. Supp. 2d 1062 (C.D. Cal. 2009).

469

Henley, 733 F. Supp. 2d at 1147–48 (finding the politician Charles DeVore’s use in

political advertisements of two copyrighted Don Henley songs, “The Boys of Summer” and

“All She Wants to Do Is Dance,” was not fair use).

470

See Russell, supra note 263 (arguing that street art is a metaphor for art in digital

culture).

471

See Al Roundtree, Note, Graffiti Artists “Get Up” in Intellectual Property’s Negative

Space, 31 C

ARDOZO

RTS

& E

. L.J. 959, 964, 981 (2013) (discussing the reasons behind

and norms associated with painting over previously existing graffiti).

472

Castillo v. G&M Realty LP, 950 F.3d 155, 162 (2d Cir. 2020).

473

Id.

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550 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

work.

474

In its analysis, the 5Pointz court described another street art

site that resulted from a “creative feud between Banksy and rival

artist King Robbo, which involved repeated modification and

overpainting of each other’s work.”

475

B. Memes as a Paradigm of a New Model of Creativity

476

Despite the shared ways memes and traditional works push

against basic copyright law concepts, we also think that memes herald

a larger shift that is underway in contemporary creativity.

477

As such,

the problems that memes present are of increasing and widespread

significance to contemporary creators. New forms of creativity are

emerging that share most of the characteristics of memes that we

established above as having upended copyright’s assumptions—partic-

ularly the norms favoring copying and transformation of works, crea-

tion of value for underlying works through copying, indirect

monetization of works, breakdown of distinction between idea and

expression, widespread and accelerated pace of copying, and decen-

tralization of the author.

478

Here we highlight three particularly

salient qualities that these new forms of creativity share with memes:

visuality, copying technology, and participatory authorship. We then

474

See Adler, Against Moral Rights, supra note 323, at 287 (describing street art as a

dialogue of authorship among different authors in which “destruction and creation

merge”).

475

Castillo, 950 F.3d at 168 n.5. The court held that temporary artwork that is

overpainted may nonetheless achieve recognized stature for purposes of moral rights

protections.

476

The Future Is Now, Old Man, K

NOW

OUR

EME

, https://knowyourmeme.com/

memes/the-future-is-now-old-man [https://perma.cc/EZA7-X55K].

477

See supra Part III.

478

See supra Part III.

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May 2022] MEMES ON MEMES AND THE NEW CREATIVITY 551

use these characteristics to sketch the contours of a major and

emerging shift in contemporary creativity.

First, memes exemplify a broader cultural shift in which images

have surpassed words as the primary mode of communication.

479

This

shift toward the visual, fueled by the pervasive use of smartphone

cameras, is evident in the online dominance of primarily visual social

media platforms, such as Instagram, Pinterest, Snapchat, TikTok, and

YouTube. Even social media platforms like Twitter and Facebook,

which did not begin as chiefly visual, have evolved to give greater

prominence to visual content.

480

Digital marketers, well aware of this

shift, emphasize visual content to exploit the power and speed of

visual images.

481

While legal scholars track the explosion of content in

the attention economy and the emergence of “cheap speech,”

482

they

have not considered the qualitative shift toward images and away

from words as the primary mode of communication and creativity in

our culture, or the implications for First Amendment law of reframing

“speech” as increasingly image-based rather than text-based.

483

Second, consider that copying, the foundation of meme cul-

ture,

484

has come to play a new and increasingly central role in con-

temporary creativity across the board. Of course, as we have

previously argued, copying has always been a significant building

block of creativity.

485

But now in digital culture, the role of copying in

479

See supra Sections II.A–B.

480

See Gerald C. Kane & Alexandra Pear, The Rise of Visual Content Online, MIT

LOAN

GMT

. R

. (Jan. 4, 2016), https://sloanreview.mit.edu/article/the-rise-of-visual-

content-online [https://perma.cc/5KYPST2U].

481

E.g., Linette Fonseca, Visual Content vs Text: Visual Content Is Worth a Thousand

Words, M

ARKITORS

(Aug. 23, 2018), https://markitors.com/visual-content-vs-text-

communication [https://perma.cc/X4H2-BKX4]; Kai Tomboc, Text vs. Images: Which

Content Format Is Effective?, E

ASEL

(May 30, 2019), https://www.easel.ly/blog/text-vs-

images-which-content-format-effective [https://perma.cc/9Z76-BXB3] (citing Anne

Trafton, In the Blink of an Eye, MIT N

EWS

(Jan. 16, 2014), https://news.mit.edu/2014/in-

the-blink-of-an-eye-0116 [https://perma.cc/55WQ-2QNL] (describing an MIT study finding

that the brain can identify images seen for as little as thirteen milliseconds)).

482

See generally Eugene Volokh, Cheap Speech and What It Will Do, 104 Y

ALE

L.J.

1805, 1807 (1995). For a few examples of the burgeoning literature around the topic of

cheap speech, see, for example, Alan K. Chen, Cheap Speech Creation, 54 U.C. D

AVIS

. 2405, 2454 (2021); Richard L. Hasen, Cheap Speech and What It Has Done (to

American Democracy), 16 F

IRST

MENDMENT

L. R

. 200 (2018); Toni M. Massaro &

Helen Norton, Free Speech and Democracy: A Primer for Twenty-First Century Reformers,

54 U.C. D

AVIS

L. R

. 1631 (2021). See also supra Section II.B.4 (discussing attention

scarcity and cheap speech).

483

See Adler, First Amendment, supra note 121, at 42 (arguing that the First

Amendment assumes an implicit hierarchy favoring text over image).

484

See supra Sections II.A, III.A.

485

See Adler & Fromer, supra note 47, at 1529; see also supra Section V.A and sources

cited therein.

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552 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

creativity has taken on a new urgency.

486

As one of us has previously

explored, this newfound centrality of copying stems from two inter-

locking reasons: In a culture of endless repetition, copying has now

become the subject of work as well as a basic tool of how people

create.

487

As such, it is not just in memes, but throughout digital cul-

ture, that we see authors choosing to create by rummaging through

the shards of existing works rather than beginning with a blank

slate.

488

Memes in this sense are just the tip of the iceberg.

We are now overwhelmed by images and information.

489

In that

regard, it is no wonder that many creative endeavors now rely on

existing work as a pool for creativity. This development is abundantly

clear in visual art. As one of us has previously argued:

Technology has unleashed both a torrent of images and the capacity

to copy them with a click . . . . We used to think of an artist as

someone who sat in nature or in his garret, working alone to create

something new from whole cloth. . . . [Yet in] a world with a surfeit

of images, perhaps the greatest artist is not the one who makes an

image but the one who knows which image to take: to sort through

the endless sea of images in which we are now drowning and choose

the one that will float.

490

In his 2013 book After Art, critic David Joselit explains that “contem-

porary art marginalizes the production of content in favor of pro-

ducing new formats for existing images.”

491

Moreover, artists have

always tried to depict our world, and our world now looks like Google

Images.

492

The digital screen and its endless play of disconnected

images is our new daily landscape, as Giverny once was for Monet.

Furthermore, in the digital era, copying has become a funda-

mental tool of how people create.

493

Let’s return to hip hop.

494

Mark

Ronson, who explores the history of sampling, describes the pivotal

role copying technology played in the birth of this art form, explaining

486

See Adler, Fair Use, supra note 46, at 568.

487

See id.

488

See id. at 572.

489

See id.

490

Adler, Fair Use, supra note 46, at 571–72.

491

AVID

OSELIT

, A

FTER

58 (2013); see also Adler, Fair Use, supra note 46, at

571.

492

See L

AURA

OPTMAN

, T

OREVER

: C

ONTEMPORARY

AINTING IN AN

TEMPORAL

ORLD

14 (2014) (“Artists have always looked to art history for inspiration,

but the immediate and hugely expanded catalogue of visual information offered by the

Internet has radically altered visual artists’ relationship to the history of art.”); cf. J

OSELIT

supra note 491, at 58 (drawing parallels between the historic role of art and architecture

and the current role of Google’s algorithm in “reformat[ting] existing streams of images

and information”).

493

See Adler, Fair Use, supra note 46, at 568.

494

See supra Part IV.A.

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that “all of a sudden [artists] found themselves in possession of the

technology” to create music from past recordings.

495

Ronson

expounds on this, saying:

[T]hat’s what the past 30 years of music has been. That’s the major

thread. See, 30 years ago, you had the first digital samplers, and

they changed everything overnight. All of a sudden, artists could

sample from anything and everything that came before them, from a

snare drum from the Funky Meters, to a Ron Carter bassline, the

theme to “The Price Is Right.”

496

In short, technology unleashed a new means for creativity. It is

now a basic tool, as musical instruments are to music or as paint-

brushes are to art.

497

And it has leveled the playing field for crea-

tivity.

498

Meme culture is a prime example of a genre in which

technology makes it so easy to create. If you don’t believe us, go to an

online meme generator like imgflip and try making your own.

499

A third hallmark of contemporary creativity is its reliance on dif-

fuse, participatory authorship. In an older model of creativity, we pic-

tured an identifiable author who unleashed a discrete and final work.

But in the new meme-like participatory model of creativity, existing

works are always in flux, subject to reuse and transformation by

others. Rather than a finished product, the work is now a template

that multiple authors use, copy, and transform in an ongoing conver-

sation that produces new and collective works in dialogue with one

another.

With these insights on visuality, copying technology, the par-

ticipatory creativity of works, and the additional characteristics pos-

sessed by memes that upend copyright’s assumptions, we now turn to

a range of examples of this new model of meme-like creativity.

One category of creative works that shares several meme attrib-

utes is dance as created, copied, and shared on the TikTok platform.

Examples range from the fast-paced Renegade dance (created by an

Atlanta teenager, set to K Camp’s song “Lottery” and copied and

transformed over 29.7 million times) to the Number One Baby dance

495

Ronson, supra note 463, at 06:00.

496

Id. at 05:15.

497

Cf. Arthur Danto, The Artworld, 61 J. P

HIL

. 571, 581 (1964) (calling the readymade

“a contribution to artists’ materials, as oil paint was”).

498

For example, see the proliferation of music software now available for free. See, e.g.,

Daryl Baxter, The Best Free Music-Making Software 2022, T

ECH

ADAR

(Dec. 13, 2021),

https://www.techradar.com/best/free-music-making-software [https://perma.cc/VDE6-

B2JP] (discussing free music software competing with expensive professional alternatives).

499

Meme Generator,

IMGFLIP

, https://imgflip.com/memegenerator [https://perma.cc/

JK53-ACES]; see also Nield, supra note 150 (discussing various platforms used to create

memes).

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554 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

(set to a hip hop song by Young Thug and Future and copied over 27

million times) to the Cannibal dance (set to a ten-year old pop song by

Kesha and copied over 9 million times).

500

Some popular dances

(often called “dance challenges,”

501

a term that itself provokes

memetic spreading on TikTok) are based on children’s songs, K-pop,

and even Vietnamese music about the countryside.

502

Choreographers

analyze how TikTok has created a new dance genre because the

moves—given the video frame—tend to focus on the body above the

legs (often featuring finger guns, hip wiggles, chest bangs, and dice

rolls), are fairly energetic, and must be easy to learn if they want a

chance at viral success.

503

As one dancer explains, despite sometimes

appearing like a homogeneous style, these dances in fact “have roots

in hip-hop but also pull from so many other styles like belly dancing,

dancehall dance moves, [and] jazz funk.”

504

That is, these dance

videos are frequently in dialogue with one another. Moreover, as one

analyst explains, “TikTok dances are often recorded by creators alone,

with the only social aspect being the imagin[ed] connection between

the dancer and their future phone-scrolling viewers.”

505

As these

dance videos are copied and transformed, often at a brisk pace, they

also frequently are stripped of their context and creator, making attri-

500

See Andria Moore & Palmer Haasch, 20 of the Most Viral Dances on TikTok, from

‘Corvette Corvette’ to the ‘Renegade,’ I

NSIDER

(Feb. 5, 2021), https://www.insider.com/

tiktok-dances-renegade-say-so-and-more-19-top-2020-3 [https://perma.cc/LFY4CVU5].

These numbers can spill over into the real world, increasing rates of song streaming and

downloads, see infra notes 552–57 and accompanying text, to the extent that some artists

and record companies pay popular TikTok personalities to dance to their music. See

Amelia Tait, Meet the Choreographers Behind Some of TikTok’s Most Viral Dances,

IRED

UK (Aug. 18, 2020), https://www.wired.co.uk/article/tik-tok-dances [https://

perma.cc/BKJ5-9RY6]; accord Christopher Buccafusco & Kristelia Garc´ıa, Pay-to-Playlist:

The Commerce of Music Streaming, 12 U.C. I

RVINE

L. R

. (forthcoming 2022).

501

Moore & Haasch, supra note 500.

502

Id.; Cat Zhang, The Latest TikTok Trend Is . . . Vietnamese Music About the

Countryside?, P

ITCHFORK

(Aug. 5, 2021), https://pitchfork.com/thepitch/the-latest-tiktok-

trend-is-vietnamese-music-about-the-countryside [https://perma.cc/C8BQ-3F9C].

503

See Charlotte Barnett, How the Obsession with TikTok Dances Spilled out of the

App and into the World, O

BSERVER

(Jan. 29, 2020), https://observer.com/2020/01/tiktok-

dance-moves-choreography-history [https://perma.cc/8FAW-CQXB] (discussing TikTok

dance choreography that focuses on the upper body and simplistic, easy-to-learn

movements); Siobhan Burke, What Makes a TikTok Dance Go Viral?, D

ANCE

. (Dec.

27, 2020), https://www.dancemagazine.com/popular-tiktok-dances-2649519038.html

[https://perma.cc/HTV6-Q7ST] (noting that simplistic dances and exaggerated facial

expressions contribute to a TikTok dance’s popularity); Koh Ewe, Yes, TikTok Dances All

Look the Same. Here’s Why., V

ICE

(Apr. 14, 2021), https://www.vice.com/en/article/

4avgmm/why-tiktok-dances-look-same [https://perma.cc/3ERJ-H5GF] (observing the

simplicity, energy, and personality common to trendy TikTok dances).

504

Ewe, supra note 503 (quoting dancer Rhiam Bichri).

505

Id. (quoting dance instructor Nika Kermani).

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bution harder than in traditional spaces.

506

Even so, popular

TikTokers can make substantial money not directly from their creative

content but from being paid to post sponsored content.

507

As another illustration of the range of meme-like creativity cur-

rently flourishing, consider the Broadway-like musicals being created

online in a fashion that is collaborative, iterative, and viral.

508

Perhaps

the most successful has been Ratatouille the Musical, based on the

2007 Disney-Pixar animated film Ratatouille about Remy, a Parisian

rat who dreams of becoming a chef. The crowdsourced musical ver-

sion began on TikTok with Le Festin, a song from the Ratatouille

movie soundtrack, frequently used as background in users’ cooking

videos.

509

A parody version of the song—featuring nonsensical

506

See Tait, supra note 500 (noting that the format of TikTok makes it often hard to

trace the original creator of a viral dance). This has led to controversy, as dances of Black

creators are often copied and popularized by white TikTok figures and credit is lost along

the way. See J. Clara Chan, Black TikTok Creators Grapple with How Far to Take Strike:

“Why Should We Have to Leave?,” H

OLLYWOOD

. (July 28, 2021), https://

www.hollywoodreporter.com/business/digital/tiktok-strike-1234988427 [https://perma.cc/

HDT3-5NQJ]; Tait, supra note 500; Hannah Yasharoff, Jimmy Fallon Addresses His

TikTok Dance Segment with Addison Rae. Here’s Why It Sparked Backlash, USA T

ODAY

(Mar. 30, 2021), https://www.usatoday.com/story/entertainment/tv/2021/03/30/tiktok-

dances-why-addison-rae-jimmy-fallon-clip-sparked-backlash/7058920002 [https://perma.cc/

PK8D-CUUA]. In response, a movement to register copyright in the choreography is

underway. Paige Skinner, The TikToker Who Created the Viral “Savage” Dance Is

Copyrighting the Moves, B

UZZFEED

EWS

(Aug. 2, 2021), https://www.buzzfeednews.com/

article/paigeskinner/savage-dance-copyrighted [https://perma.cc/BL7T-578Y]. Whether

these actions are merely a way to claim official credit or a desire to formally enforce

exclusive rights is unclear.

507

Tait, supra note 500. One difference between memes, which proliferate without

underlying payment to or permission from their creators, and TikTok content is that

TikTok pays licensing fees for the songs underlying users’ dance videos. Amy Johnson,

TikTok Music & Royalties: How Does It Work?, A

UDIOSOCKET

, https://

www.audiosocket.com/social-media-guides/tiktok-music-royalties-how-does-it-work

[https://perma.cc/SX9U-P3MF]. Not all social media platforms pay for licenses. That

TikTok finds it worthwhile to do so provides another model of how meme culture could

work. This model also suggests the need for further analysis, especially because TikTok

might be paying for licenses to avoid copyright claims—even ones that should fail—to

keep the platform successful. It is possible that the new creativity could be inhibited were

TikTok to stop its licensing practice.

508

See Laura Wheatman Hill, What’s The Deal With All These TikTok Musicals?,

ETCHES

(Feb. 1, 2021), https://betches.com/whats-the-deal-with-all-these-tiktok-musicals

[https://perma.cc/S4A6-T3B6] (identifying TikTok musicals, such as Grocery Store: The

Musical and Ratatouille the TikTok musical, and asking whether this phenomenon is “the

future of content creation”); see, e.g., Jeff Lunden, Now Playing on TikTok: ‘Bridgerton’

The Musical, A

HINGS

ONSIDERED

(Feb. 13, 2021, 5:08 PM), https://www.npr.org/

2021/02/13/967175912/now-playing-on-tiktok-bridgerton-the-musical [https://perma.cc/

GPG9-ZW2A] (explaining how two singer-songwriters wrote and posted songs about the

Netflix show Bridgerton that went viral on TikTok).

509

Rebecca Alter, Broadway Is Closed, but Ratatouille the Musical Is Cooking on

TikTok, V

ULTURE

(Nov. 19, 2020), https://www.vulture.com/2020/11/ratatouille-musical-

tiktok.html [https://perma.cc/EMC5-7GXZ].

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French-sounding lyrics set to Le Festin’s tune—followed and was

debuted as background music to a TikTok video that depicted what

one news story described as “self-consciously gross or bad cooking, or

really any sort of weird lifestyle-hack fails.”

510

Subsequently (and fol-

lowing up on her homages to other cartoon characters, including Jar

Jar Binks and Winnie the Pooh), TikTok user Em Jaccs shared an ode

to Remy that she had written and performed, in which she had modi-

fied her voice to sound like a mouse.

511

TikTok user Daniel Mertzlufft

then adapted the song into an all-out Broadway number with arrange-

ment and orchestration.

512

This song was viewed over one million

times and used in thousands of others’ TikTok videos, including videos

that made a set design for this “musical,” created choreography, made

a musical playbill, designed makeup for the characters, and performed

a cast party.

513

Others built further on the song, some using TikTok’s

duet feature to voice lyrics they wrote for other characters in the

movie to sing along with Remy.

514

TikTok users then added new songs

corresponding to scenes throughout the movie, often with numerous

songs per scene, in many styles including a Lin-Manuel Miranda

parody song.

515

Other TikTok users created songs that went beyond

510

Id.; see, e.g., JoKo entertainment, CEO of Speaking French ( Ratatouille ) TikTok

TREND COMPILATON — FAILS, Y

UBE

(May 17, 2020), https://www.youtube.com/

watch?v=3WlC2ybFjkY [https://perma.cc/V32S-KARE] (YouTube compilation of these

TikTok videos).

511

Alter, supra note 509; Emily Jacobsen (@e_jaccs), T

(Aug. 8, 2020), https://

www.tiktok.com/foryou?referer_url=https%3A%2F%2Fcdn.embedly.com%2F&

referer_video_id=6859521038418447622&refer=embed&is_copy_url=1&is_from_webapp=

v1&item_id=6859521038418447622#/@e_jaccs/video/6859521038418447622 [https://

perma.cc/U89K-W6JM].

512

Alter, supra note 509; Daniel Mertzlufft (@danieljmertzlufft), T

(Oct. 19,

2020), https://www.tiktok.com/@danieljmertzlufft/video/688547519341062067

8?refer=embed [https://perma.cc/Y96G-F9DK].

513

Alter, supra note 509; see, e.g., Shoebox Musicals (@shoeboxmusicals), T

(Oct.

21, 2020), https://www.tiktok.com/@shoeboxmusicals/video/6886267112373947653?

refer=embed [https://perma.cc/GP5D-XZR5] (set design); Nic (@still_nic), T

(Nov.

15, 2020), https://www.tiktok.com/@still_nic/video/6895476547000585477?refer=embed

[https://perma.cc/HY5X-8J45] (cast party); Tristan McIntyre (@tristanmichaelmcintyre),

(Nov. 13, 2020), https://www.tiktok.com/@tristanmichaelmcintyre/video/

6894839741158608134?refer=embed [https://perma.cc/6K2T-SELW] (choreography); Jess

Siswick (@siswij), T

(Nov. 14, 2020), https://www.tiktok.com/@siswij/video/

6894854586293669126?refer=embed [https://perma.cc/L96A-9994] (playbill); Morgaine

(@morgainemade), T

(Nov. 16, 2020), https://www.tiktok.com/@morgainemade/

video/6895753331688426753?lang=EN [https://perma.cc/S3JG-T7VJ] (makeup).

514

Alter, supra note 509; Acacia (@acaciapressley), T

(Oct. 29, 2020), https://

www.tiktok.com/@acaciapressley/video/6889238341120789766?refer=embed [https://

perma.cc/Z2CP-W5WT].

515

Alter, supra note 509; Emily Maskell, A Complete Guide to the ‘Ratatouille’ TikTok

Musical, P

APER

(Nov. 26, 2020), https://www.papermag.com/a-complete-guide-to-the-

ratatouille-tiktok-musical-2649046202.html [https://perma.cc/35P5-5KHX] (publishing an

act-by-act guide to the musical’s songs); see, e.g., Rocky Paterra (@rockysroad), T

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the film, such as a song adopting the view of Remy’s mother, a char-

acter that does not appear in the movie.

516

Then Broadway actors

began performing these songs online.

517

Eventually, this led to a vir-

tual performance of a musical culled from the TikTok songs and other

videos by Broadway performers such as Tituss Burgess, Wayne Brady,

and Adam Lambert, which raised over $2 million for charity

518

and

was reviewed in traditional media outlets like the Chicago Tribune.

519

Not only did Disney not use copyright to challenge these works, but it

supported the charity performance.

520

In these new forms of online creativity, users also have revived

and transformed centuries-old forms of work. At the end of 2020,

Scottish postman Nathan Evans posted on TikTok his rendition of

Wellerman, a nineteenth-century sea shanty sung by merchant seamen

as they worked to distract themselves from labor.

521

Sea shanties are

folk songs that typically have lyrics about whaling, winds, and

harpoons.

522

In a few weeks, Evans’s video was viewed over nine mil-

lion times and provoked an outpouring of creativity: TikTok duets

using his and others’ performances of sea shanties, remixes of these

sea shanties, newly composed sea shanties, reactions to the revival of

such an old form of music, memes about sea shanties, Kermit the Frog

(Oct. 28, 2020), https://www.tiktok.com/@rockysroad/video/6888784128276286725?

refer=embed [https://perma.cc/G2VZ-YUQE] (Lin-Manuel Miranda parody).

516

Maskell, supra note 515.

517

See Alter, supra note 509 (noting a TikTok performance by Andrew Barth Feldman,

who performed a personalized song made by TikTok user Nathan Fosbinder); Nathan

Fosbinder (@fozzyforman108), T

(Nov. 10, 2020), https://www.tiktok.com/

@fozzyforman108/video/6893577050712476934?refer=embed [https://perma.cc/R28D-

ARXP] (TikTok video of Feldman performing the song).

518

Ratatoutille: The TikTok Musical, https://ratatousical.com [https://perma.cc/4QE4-

GKUM]; see also TikTok’s Ratatouille: The Musical Makes It to Broadway and Streams on

TikTok, T

(Jan. 8, 2021), https://newsroom.tiktok.com/en-us/tiktok-ratatouille-the-

musical-makes-it-to-broadway-and-streams-on-tiktok [https://perma.cc/6DA2-3MEH].

519

E.g., Michael Phillips, Even with One Composer Missing, Here’s Why ‘Ratatouille:

The TikTok Musical’ Points Straight to Broadway, C

. T

RIB

. (Jan. 2, 2021), https://

www.chicagotribune.com/entertainment/movies/michael-phillips/ct-mov-ratatouille-tiktok-

0104-20210102-4rkqjwllffewbln6ocpyrow4ki-story.html [https://perma.cc/B2ET-7A8A].

520

Greg Evans, ‘Ratatouille: The TikTok Musical’: How Broadway Cooked up the

Perfect Appetizer for a New Year That Can’t Start Soon Enough, D

EADLINE

(Jan. 1, 2021),

https://deadline.com/2021/01/ratatouille-tiktok-musical-benefit-disney-seaview-emily-

jacobsen-tituss-burgess-actors-fund-1234663746 [https://perma.cc/WDE8-5HJK].

521

Sea Shanty TikTok—@nathanevanss, T

(Jan. 25, 2021), https://

newsroom.tiktok.com/en-gb/sea-shanty-tiktok-nathanevanss [https://perma.cc/YS9C-

TFXE]; see also Rebecca Renner, Everyone’s Singing Sea Shanties (or Are They Whaling

Songs?), N.Y. T

IMES

(Jan. 13, 2021), https://www.nytimes.com/2021/01/13/style/sea-shanty-

tiktok-wellerman.html [https://perma.cc/845L-7VAB].

522

See Kathryn VanArendonk, Um, It Makes Total Sense We’re All into Sea Shanties

Now, V

ULTURE

(Jan. 12, 2021), https://www.vulture.com/2021/01/tiktok-sea-shanties-

explained.html [https://perma.cc/UY2N-WB7H].

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558 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

performing a sea shanty, and even an electronic dance music version

of this new shanty genre.

523

Famous musicians got involved, with Sir

Andrew Lloyd Webber layering his piano playing atop, and boy bands

harmonizing with, Evans’s performance.

524

Like TikTok dances, these songs are suited to the platform. As

one news report explains, “[t]hey’re songs with simple, blunt rhythms,

meant to be easy to learn and easy to sing along with . . . . [T]he

engine of the song is in the repeating chorus that everyone sings

together . . . . They are unifying, survivalist songs, designed to trans-

form a huge group of people into one collective body.”

525

Another

analysis elaborated, “[o]n a technical level, shanties seem perfectly

primed for TikTok. They’re a call-and-response genre on a call-and-

response app. . . . And, like memes, the shanty is an art form that

seemingly belongs to no one, comes from nowhere, exists to be repli-

cated.”

526

TikTok participants commented how much they felt it

brought them together during a pandemic and gave a sense of adven-

ture, as if they were on a collective seafaring voyage rather than stuck

at home alone.

527

Evans, himself, got so much positive attention from

launching this trend that he was signed to the Polydor record label and

quit his job as a postman.

528

523

E.g., Jason Heffler, Here’s an EDM Remix of the Viral “Wellerman” TikTok Sea

Shanty—and It’s Actually a Banger, EDM (Jan. 15, 2021), https://edm.com/music-releases/

viral-wellerman-tiktok-sea-shanty-electronic-dance-music-remix [https://perma.cc/CN24-

MKYD]; @artmonkeyworld, T

(Jan. 11, 2021), https://www.tiktok.com/

@artmonkeyworld/video/6916564331928866054?lang=EN [https://perma.cc/A67Q-N5FY]

(Kermit sea shanty); Argules, ARGULES – Wellerman (sea shanty) TikTok BUMP

HOUSE Remix, Y

UBE

(Jan. 7, 2021), https://www.youtube.com/watch?v=

ZDTaeqUEWNQ [https://perma.cc/5TMX-5VVW] (sea shanty remix); see also Renner,

supra note 521 (contextualizing the TikTok sea shanty phenomenon within history and

modern-day life); VanArendonk, supra note 522.

524

Shanty TikTok—@nathanevanss, supra note 521; Andrew Lloyd Webber

(@officialalw), T

(Jan. 18, 2021), https://www.tiktok.com/@officialalw/video/6919061

058825063682?referer_url=https%3A%2F%2Fnewsroom.tiktok.com%2Fen-gb%2Fsea-

shanty-tiktok-nathanevanss&referer_video_id=6919061058825063682&refer=embed

[https://perma.cc/WCD3-EKLL] (Sir Andrew Lloyd Webber TikTok); Gary Barlow

(@officialgarybarlow), T

(Jan. 18, 2021), https://www.tiktok.com/@

officialgarybarlow/video/6919146558533422338?referer_url=https%3A%2F%

2Fnewsroom.tiktok.com%2Fen-gb%2Fsea-shanty-tiktok-nathanevanss&referer_video_id=

6919146558533422338&refer=embed [https://perma.cc/3XUD-4G7V] (boy band TikTok).

525

VanArendonk, supra note 522.

526

Kyle Piscioniere, Sea Shanty TikTok Is on Fire, S

LATE

(Jan. 23, 2021), https://

slate.com/culture/2021/01/sea-shanty-tiktok-wellerman-trend-explained.html [https://

perma.cc/2JAN-Z5Z5].

527

See Kerry Breen, Why Is TikTok Obsessed with Sea Shanties? An Investigation,

ODAY

(Jan. 14, 2021), https://www.today.com/tmrw/here-why-tiktok-obsessed-sea-

shanties-today-t205848 [https://perma.cc/D344-F2SU]; VanArendonk, supra note 522.

528

Adela Suliman, Kelly Cobiella & Kiko Itasaka, TikTok Star Behind ‘Wellerman’ Sea

Shanty Craze Quits Job as Mailman, NBC N

EWS

(Jan. 24, 2021), https://www.nbcnews.com/

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While much of this creativity is taking place on TikTok—a cur-

rent dominant social media platform—it is all over just about every

form of social media. On Instagram, users participate in challenges in

which, according to one guide explanation, “someone on Instagram

sets a theme and asks people to share photos [or videos] on that

theme using a particular hashtag.”

529

Examples include #floralfriday

competition (a weekly challenge to share photos of flowers or gar-

dens), #INKtober (a challenge to draw and post an ink drawing each

of the thirty-one days of October), and #pillowchallenge (a challenge

where, as explained by one news article, “participants fashion dresses

out of their bedding by belting a pillow at the waist”).

530

Pinterest has

users curating and sharing theme boards of everything from their

favorite pink dresses to interior design to architecture details and

wedding photos.

531

Tumblr and Medium provide ways for users to

create blogs or stories filled with text, audio, photos, videos, and more

and for others to follow, copy, and engage with those who share their

interests.

532

Twitch has users streaming aspects of their lives, including

video game play, to others watching and interacting in real time.

533

DeviantArt is a social network set up to share user artwork.

534

Wattpad is a platform where users can publish their writing to be read

by its ninety million readers and can create social communities around

stories; it also provides a spot for fan fiction and is a launchpad for

news/world/tiktok-star-behind-wellerman-sea-shanty-craze-quits-job-mailman-n1255426

[https://perma.cc/W5MX-K2K9]. Other musicians, including Justin Bieber, Shawn Mendes,

and The Weeknd, launched their professional careers by sharing their music performances

online. Morgan Greenwald, 5 Artists Who Got Their Start on YouTube, I

NOW

https://www.intheknow.com/post/5-artists-who-got-their-start-on-youtube [https://

perma.cc/5JM2-Z7GH].

529

Camilla Westergaard, The Best Instagram Challenges for Makers & Why You Should

Be Taking Part, F

OLKSY

, https://blog.folksy.com/2017/06/07/best-instagram-challenges

[https://perma.cc/WM4U-7FL7].

530

Alexandra Pauly, What Exactly Is the Pillow Challenge Taking Over Instagram?,

YPEBAE

(Apr. 16, 2020), https://hypebae.com/2020/4/pillow-challenge-instagram-social-

media-trend-quarantine-home-fashion-pillowcase-explained [https://perma.cc/GFD8-

BXP6]; Westergaard, supra note 529.

531

E.g., Top 11 Pinterest Boards, N

EOREACH

(June 14, 2019), https://neoreach.com/top-

pinterest-boards [https://perma.cc/LH79-39RT]; Pink Dresses, P

INTEREST

, https://

www.pinterest.com/dressforwedding/pink-dresses [https://perma.cc/VU2X-2XS7]; see also

Amanda Fortini, How Pinterest Became a Booming Factory for Creativity, W

IRED

(July 22,

2014), https://www.wired.com/2014/07/pinterest-creativity [https://perma.cc/K7BG-FCED]

(describing Pinterest, which allows users to curate their user experience to support their

creative hobbies).

532

See M

EDIUM

, https://medium.com [https://perma.cc/6VJM-TTPE] (“Medium is a

place to write, read, and connect.”); T

UMBLR

, https://www.tumblr.com [https://perma.cc/

63ZR-44LB] (“Make stuff, look at stuff, talk about stuff, find your people.”).

533

See T

WITCH

, https://www.twitch.tv [https://perma.cc/DJD6-VARY].

534

EVIANT

, https://www.deviantart.com [https://perma.cc/Z9Q2-SRRQ].

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560 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

publication or movie adaptation.

535

Each of these social media plat-

forms has built-in mechanisms to copy and share others’ work and to

engage with it, underscoring the recognized value of copying and dia-

logue among works.

These examples demonstrate the pervasiveness of the new mode

of creativity—much as with memes—particularly among visual works,

which have become a dominant form of expression. Copying and

transformation of works is no longer condemned but celebrated. Cop-

ying happens easily with a click of a button or two. And it creates

value for the underlying works being copied. The subsequent creators

can profit, but usually only do so by indirect monetization. Reuse of

expression can turn what was once only expression into idea. Copying

proceeds at a frenetic scale and pace and can lead works to become

stale at previously unforeseen rates. These works, as they are passed

around, become decentered from their authors. And the works—by

building on, communicating with, and drawing from one another—are

interwoven into a grand conversation and communal cultural experi-

ence. As with memes, copyright law is a misfit for this new

creativity.

536

535

See W

ATTPAD

, https://www.wattpad.com [https://perma.cc/S32B-8327] (homepage of

Wattpad, describing itself as “[t]he world’s most-loved social storytelling platform”); see

also Julia Alexander, From Fanfiction to Netflix Hits, V

ERGE

, https://www.theverge.com/

2021/1/14/22215052/wattpad-authors-fanfiction-netflix-hulu-streaming-movies-romcom-

teen-drama [https://perma.cc/32UW-GZXE] (describing how Wattpad has been the

launchpad for movie adaptations).

536

See supra Part III.

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C. Trying to Make Memes More Like Traditional Works

537

The extraordinary spread of meme-like creativity helps shed light

on another emerging cultural phenomenon. Consider the recent

market craze for NFTs that has captured public attention due to the

astonishingly high prices NFTs command.

538

As a New York magazine

article exploring the NFT hype defined it, an NFT is “a digital asset

whose uniqueness, and therefore its value, is stored cryptographically

on the digital ledger known as the blockchain.”

539

Though NFTs, as

unique digital identifiers, can be used to sell anything, they are com-

monly used to sell tokens for digital images or clips, even though these

images or clips are themselves freely available and copyable.

540

Here

we offer a novel interpretation: We see the craze for NFTs as a direct

reaction to meme culture and what it represents.

541

As we have argued, memes encapsulate a distinctly modern con-

dition of creativity in a world of unbounded copying. Memes prolif-

537

Spiderman Pointing at Spiderman Meme Generator,

IMGFLIP

, https://imgflip.com/

memegenerator/110133729/spiderman-pointing-at-spiderman [https://perma.cc/FLP7-

8U95].

538

See, e.g., Scott Reyburn, JPG File Sells for $69 Million, as ‘NFT Mania’ Gathers

Pace, N.Y. T

IMES

(Mar. 11, 2021), https://www.nytimes.com/2021/03/11/arts/design/nft-

auction-christies-beeple.html [https://perma.cc/4UF2-PHV4] (documenting the record-

breaking sale of an NFT of a digital work of art for $69 million, making it the third-highest

price for a work of art sold at auction for a living artist).

539

Max Read, There’s Nothing to Do Except Gamble, N.Y. M

. I

NTELLIGENCER

(Apr.

12, 2021), https://nymag.com/intelligencer/2021/04/nft-future-of-money.html [https://

perma.cc/T926-B4S6].

540

Mitchell Clark, NFTs, Explained, V

ERGE

(Aug. 18, 2021), https://www.theverge.com/

22310188/nft-explainer-what-is-blockchain-crypto-art-faq [https://perma.cc/36HR-RAKR].

541

Cf. Joshua Fairfield, Tokenized: The Law of Non-Fungible Tokens and Unique

Digital Property, 97 I

. L.J. (forthcoming) (manuscript at 1) (proposing a legal

framework to analyze NFTs); Kal Raustiala & Christopher Jon Sprigman, The One

Redeeming Quality of NFTs Might Not Even Exist, S

LATE

(Apr. 14, 2021), https://

slate.com/technology/2021/04/nfts-digital-art-authenticity-problem.html [https://perma.cc/

86EU-FAN4] (analyzing NFTs through the lens of status as “virtual Veblen goods”).

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562 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

erate and mutate without limit and without anyone in control.

Everyone is an author; every image is up for grabs. There is no orig-

inal, no owner, no beginning, no end, and no moment of stasis. But in

contrast to the limitless copies of meme culture, the NFT now manu-

factures a “unique” original. Instead of the endless flux of memes, the

NFT artificially stops time. Unlike authorless and ownerless memes,

the NFT privatizes the image. Whereas memes are free and only indi-

rectly monetizable (if at all), the NFT creates a product to sell. No

wonder some of the most famous and recognizable meme creators or

subjects have cashed in. The subject of the famous Disaster Girl

meme

542

just sold an NFT of her meme for $500,000.

543

In short, we

see the market for NFTs as a reaction against the modern conditions

of endless copying that memes emblematize.

544

NFTs represent an

attempt to cling to the concepts of uniqueness, originality, and authen-

ticity in a world where those concepts no longer make sense.

545

Whereas philosopher Walter Benjamin once hoped that the tech-

nology of reproduction would destroy the aura of the unique work of

art, the NFT does the opposite: It manufactures ersatz uniqueness to

counteract a world of limitless reproduction.

546

Well before the advent of NFTs, Professor Barton Beebe

described how intellectual property law created artificial scarcity in

our post-rarity world.

547

Although he did not address meme culture,

Beebe discussed the proliferation of copying technology and the

responsive use of intellectual property law “to re-enchant copies, to

render them as somehow unique or authentic” in a culture of cop-

ying.

548

But unlike Beebe’s vision in which intellectual property law

plays a role in creating false rarity, what we see with NFTs is a false

rarity created and monetized strictly through the market, without any

operation of law. As is increasingly the case with digital culture, social

542

Disaster Girl, supra note 443.

543

Marie Fazio, The World Knows Her as ‘Disaster Girl.’ She Just Made $500,000 off the

Meme, N.Y. T

IMES

(May 1, 2021), https://www.nytimes.com/2021/04/29/arts/disaster-girl-

meme-nft.html [https://perma.cc/7Q55-MY4N].

544

Amy Adler, The Artifice of Authenticity (Jan. 24, 2022) (unpublished manuscript)

(on file with authors).

545

See Walter Benjamin, The Work of Art in the Age of Mechanical Reproduction

(“From a photographic negative, for example, one can make any number of prints; to ask

for the ‘authentic’ print makes no sense.”), in I

LLUMINATIONS

174 (Hannah Arendt ed.,

Harry Zohn trans., Schocken Books 1968) (1955); cf. Adler, The Artifice of Authenticity,

supra note 544 (discussing these concepts in regard to the art market).

546

Benjamin, supra note 545 (discussing the “aura” of authenticity present in certain

unique, original works and how that aura “withers” in response to mass-produced work

like film).

547

Barton Beebe, Intellectual Property Law and the Sumptuary Code, 123 H

ARV

. L.

. 809, 817 (2010).

548

Id. at 844.

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norms and the market itself have superseded the role previously

played by law, at least for the moment.

549

As we have seen, the misfit between memes and central tenets of

theory. While traditional works already share certain features of

memes, ultimately memes encapsulate a widespread emergence of a

new mode of creativity in digital culture. Even contrary trends in dig-

ital culture, such as the NFT, demonstrate how pervasive meme cul-

ture has become.

ONCLUSION

550

This Article sets out how memes upend so many of copyright

law’s fundamental assumptions on creativity, commercialization, and

distribution: that creativity should typically happen without copying,

that copying is harmful, that creators directly profit from exercising

gories, that copyright duration ought to be long to correspond to the

longtime viability of works, that copyright holders should be able to

select an exclusive few to exploit their works, and that the author is

central. Copyright law is therefore a poor fit for this form of creativity,

exemplified by memes but now characterizing a vibrant range of crea-

tivity, particularly online.

549

See Adler & Fromer, supra note 47, at 1457 (noting the recent trend of those holding

copyrights to seek relief outside of traditional legal systems); see also supra Sections II.C,

IV.A.

550

Path Split in Forest Meme Generator,

IMGFLIP

, https://imgflip.com/memegenerator/

35673474/Path-split-in-forest [https://perma.cc/4Q9A-6NLT].

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564 NEW YORK UNIVERSITY LAW REVIEW [Vol. 97:453

Though this new mode of creativity is surging, the more tradi-

tional creativity that copyright has long sought to protect is not

dead—far from it. There are still and probably will long be block-

buster superhero movies, beach reads by authors like Stephen King,

pop songs by the likes of Beyonc ´e, Adele, and Maroon 5, and so forth.

What we are now seeing is a second important path of creativity, with

memes being a paradigm case. Both paths can be understood to be

important and in need of nurturing. While the traditional path might

be cultivated best with copyright law, the new path should not be, at

least with copyright law in its current form.

551

Although these two paths are distinct, they can nevertheless

intertwine and affect one another. Individual creators might engage in

both traditional and new creativity. New creators might also copy

from traditional creators, as with underlying images used in memes or

the plot and characters from the Ratatouille movie used in a musical

version. And sometimes, traditional creators will get a windfall from

new creators’ activity.

Consider the recent success of nineteen-year-old actress and

singer Olivia Rodrigo. Her song “Drivers License”—a heartbreak

ballad—led to a myriad of TikTok copying and transformation.

552

the first few weeks of its release, it was used as the soundtrack to

300,000 TikTok videos

553

(which have collectively been viewed over

one billion times, with one video viewed over fifty million times

554

). It

was also an unprecedented hit according to more traditional measure-

ments

555

: It debuted at number one on the Billboard Hot 100 chart,

where it remained for many weeks, and was streamed 76.1 million

times and sold 38,000 downloads in the United States in its first week

of release.

556

The flutter of TikTok creativity that resulted from cop-

551

See supra Part IV.

552

See Rachel E. Greenspan, Palmer Haasch, Kat Tenbarge & Moises Mendez II,

‘Drivers License’ by Olivia Rodrigo Is TikTok’s Latest Obsession. A Speculated Love

Triangle Is Fueling Its Popularity.,I

NSIDER

(Jan. 25, 2021), https://www.insider.com/

drivers-license-olivia-rodrigo-lyrics-joshua-bassett-taylor-swift-tiktok-2021-1 [https://

perma.cc/TF9T-5M43].

553

Id.

554

Myles Tanzer, Olivia Rodrigo’s ‘Drivers License’ Became the World’s Biggest Song

via TikTok, WSJ M

. (Jan. 21, 2021), https://www.wsj.com/articles/olivia-rodrigo-drivers-

license-tiktok-spotify-11611235409 [https://perma.cc/8QUR-6A4G].

555

See Craig Jenkins, Nothing Is Flattening Music Like TikTok, V

ULTURE

(Feb. 12,

2021), https://www.vulture.com/2021/02/essay-drivers-license-tiktok-radio.html [https://

perma.cc/R27V-ZG6Z] (“The last time [metrics like these] occurred with any regularity

was in the early aughts, when the first post-show singles by American Idol winners . . .

arrived to nationwide attention after weeks of exposure to the prime-time audiences of one

of the most-watched shows on television.”).

556

Tanzer, supra note 554.

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ying from or transforming “Drivers License” itself has been credited

as the linchpin of the song’s success on these traditional metrics.

557

What this example demonstrates—as do those set out throughout

the Article—is that both paths of creativity, traditional and new, can

be vibrant and will need each other. Traditional creativity will engage

with contemporary culture in part by intermixing with the new crea-

tivity, and the new creativity will draw on traditional creativity. Yet we

must be sensitive to the misfit between the new creativity and existing

557

Greenspan et al., supra note 552; Jenkins, supra note 555; Tanzer, supra note 554.