By Chloë Arkenbout
“I previously ran into some issues with [an] academic journal […] with regards to copyright. I was not able to publish images of memes because I didn’t have the exact source or permission from the creator. This seems ridiculous since memes don’t have authors. I’d like to reference images in my text, but want to make sure with you beforehand. Are there any specifications with regards to how the meme is cited?”
As the co-editor of the Institute of Network Cultures (INC) Reader about critical meme research, this is the first time in my career as a Researcher & Editor where I’m working on a publication where memes are so prominently involved. Prior to this question we received from one of our contributors, I had given meme copyright not much thought, if I am being honest.
My first instinct was to agree with the contributor; not publishing memes in a reader about memes does sound ridiculous. Everyone involved in the reader agreed immediately; we will publish memes. For a moment I suspected that the publisher they mentioned must have been rather conservative and they probably lack substantial knowledge on the nature of memes, as memes are meant to be copied, remixed, shared. Memes cannot be owned.
I realized rather quickly, however, that this train of thought would be too simplistic. At INC we constantly criticize and develop alternatives for revenue models in the media and art world and we believe that artists should be fairly credited and compensated for their work. As I also specialize in media ethics, I know things are never as simple as they seem. That is why I decided to dive into the complex nuances of meme copyright.
Usually there are four different components that a meme exists out of that are relevant when it comes to their copyright. The image, the text, the new image that is created by the combination of these two, and the various adaptations that are then created by multiple other people based on that new image. This construction alone raises multiple questions about ownership.
If person b adds text to an image that is owned by person a to create a meme, which is then adapted with new texts by person c, d, e, f, g, h, i, j, k, l, m, n, o, and p, can person a claim for damages? And to whom exactly? Person b? The rest of the alphabet? Legally; perhaps. Practically; unlikely. And what if person q, r, s, t, u, v, w, x and y use the text by person b with another image which is owned by person z, can person b then claim them for damages? It’s safe to say that copyright lawyers probably will not have unambiguous answers to these questions.
There are additional questions of authorship that move beyond legal copyright claims, as they have to do with artistic recognition. If person b in the previous example wants to be credited for being ‘the first to create the meme’ that went viral afterwards, how do they prove that they were, in fact, the first? Or what if person e is the person who creates the meme that makes it go viral, do they owe something to person b, c, and d? Or person a? Or are there no artistic individual ego’s involved in meme creation and do memes lead a collective life of their own?
These are all valid questions. For now, however, I would like to focus on the context of the original question that started this essay; how to proceed, as an editor, when there is an essay to be published that includes memes?
When an author wants to publish a meme in their article and they know who the creator of that meme is, or when it is relatively easy to find out who it is, things are relatively uncomplicated. Meme Studies Research Network founder and critical meme reader contributor Idil Galip explains in an interview I had with her, that a lot of memes in certain communities have such a strong aesthetic, that you can usually tell by who it is made. “You have to do your best to find out who made [the meme you want to use] – that’s every researcher’s duty; to follow the memetic thread.” According to Idil it would be too easy to assume that you can never find out who made a meme, ‘just because it is a meme’. I agree with her completely.
So just ask. If the meme creator in question grants you permission that is fantastic. If they do not, you either do not publish that meme or you pay them if you have the budget to do so. Simple. What about those more generic memes you find in the endless depths of Reddit threads, though, where it is substantially more difficult to track down the creator?
Since we’re talking about intellectual property rights here, I decided to consult an information specialist. He told me that, in principle, memes are protected by copyright law. The fact that the original creator and the copyright holder might not be able to be tracked down does not make memes an exception to this rule; the use of a meme as an illustration constitutes an infringement of copyrights. It is only allowed to use a meme with permission (and possible payment) from the creator.
It is possible to quote memes, however, with the following conditions (which are legally mandatory):
1.They are as small as possible (they should not be illustrations);
2. They are directly related to text (the text must discuss the meme);
3. They have a source indication (if possible).
As co-editor, I would not want to go as far as not being able to use a meme, if the author cannot find the source to ask for permission. I also do not want to make them as small as possible in the layout. Perhaps it is the anarchist spirit of the INC that is embodied in me, but settling for this was not going to do.The universalistic Kantian approach to ethics, where there is no room for exceptions in certain situations or for nuances, has never had my preference anyway. Using the same copyright laws for memes for other images does not make sense to me, as there is no room for the context of the ontological nature and the essence of the meme.
There must be a middle ground.
I would prefer a virtue ethics approach; a healthy balance between two options that both seem to be rather extreme. When it comes to finding the source of the meme, laziness and carelessness would mean having to discredit the meme creator. Being anal about it and following every tiny little rule would be limiting, to say the least. As an editor, being respectful of the meme artists and being as thorough as possible is the balance I strive for.
Where does the moral responsibility lie when it comes to the ethics of meme copyright then? Here’s what we told our contributors: do your ultimate best to find the source and ask for their permission – if you really cannot find a source, gather as much information as possible about when and where you found the meme; the date you saved it, on what platform, in what thread, what user posted it, the url, etc. We trusted our contributors with this responsibility to be thorough.
Thus, in the end, it comes down to an utilitarian approach. By taking a little risk for a relatively small number of people (a handful of meme creators that might not be amused if they see their uncredited work in our reader – with all related possible financial consequences), we make a larger amount of people happy (everyone reading the lovely reader). And that is a risk I am willing to take.