It’s actually a very complex topic and I’m not sure I can give it the right treatment right now, without having done all the research I want to. Treat this as an outline I suppose.
But somewhere between the shuffle of the internet, from one viral marketing tool to another, the evolution of Web 2.0, and attention whoring on YouTube or MySpace, there is something going on. Lessig calls it a war, but I think it’s a lot more subtle than that–although it is pretty serious. However, while the war (or whatever you call it) may wage on, there are some players who are the key to understand why it’s an important conflit. Memes are one of them.
For the sake of simplicity, we’ll define and call this construct a “meme” in that it is a icon, like words in a language, that symbolizes and trigger a set of experiences, ideas, and/or emotions. These are powerful currencies that brings us to laughter, to sadness, to help us remember.
1. Memes are powerful, compact, concise devices to invoke elaborate and complex ideas and shared experiences.
As time become increasingly valuable in certain societies and cultures, and as well as the size of our communication devices for mass media shrink over time (not to mention our attention span), it is increasing important to be able to deliver large amount of content over a small area. A picture is worth a thousand words, so they say–that’s why motion pictures and television are powerful? Memes, audio, audiovisual, visual, slogans, simple words, emoticons, or even body language become common methods to express large amount of data over a short time. It’s got the phat pipes, so to speak. And unlike latin or calculus, it is widely disseminated and fast to learn.
2. Increased mobility and intake demands concise and short informational exchanges
In terms of blogging, memes are both the bait and the hook. In some ways it is just another channel to communication and disseminate. Soap box where people can talk back at you. Slashdot is probably the best example. For me, 2ch, 4ch, SA, Wikipedia, Xanga, MySpace, what have you. However the juicy morsels of entertainment and education that draw us to those sites are what memes are made of. Snakes on a Plane? The online craze is unbelievable. Yet that’s what some of us are looking for–good campy movies–to begin with. It just spread like how a meme does.
3. Memes are useful for blogging, blogs create memes.
But speaking of Snakes on a Plane, the obviously stock concept of dangerous creepers in a confined area with a lot of people who can’t leave is hardly copyrightable. In some ways Samuel L. Jackson’s performance involving the various uses of “motherfucking” has more copyrightability (even if it is also not really copyrightable), which is odd. Of course I say this with the disclaimer that don’t take my word for it–the law on the book is fairly settled when it comes to Scene a Faire. Still, it might take a litigation anyways to find out. Can New Line Cinema take on the countless of parodies and references to this cult hit-in-the-making for ages to come? Probably to some success if the money is there. What’s up with the rather high 8.1 IMDB ratings anyways?
4. Memes may use copyrightable or trademarked expressions to get the job done.
5. Derivative claims on memes–not derivative enough too frequently.
If you recall the original flash video for All Your Base Are Belong To Us, you’ll remember a large amount of use of photochopped image ala Photoshop Friday @ SomethingAwful. Parody? Maybe–they’re definitely not making fun of the cultural icons they were using. And you may also recall that’s the reasoning why PA humbled themselves from the Strawberry Shortcake joke they pulled. All these things makes weak, in the context of a fair use defense against copyright infringement, the fair use defense.
And on the topic of Penny Arcade, they’re not a non-profit use per se. I’m not sure if they’ve gone farther with what they’ve had, including PAX and all, but in many ways they’re a profitable entity–enough to subsist Tycho and Gabe’s gaming habits at least. In as much most relevant memes do carry some kind of social value either as criticism, and are often freely traded, they tend to use commercial, copyrighted content that are not news-worthy. There are some that are, such as ones involving 9/11 or the war in Iraq, depending on subject matter.
6. The context in use of memes: commercial, private/public, social criticism, fact/news/fiction. It can affect the fair use defense.
And even though you can’t call AYBABTU a Budweiser ad, or even an ad for an old NES game, it evokes enough of both. What has been transformed? Certainly the images themselves and their contexts, but each of those individual elements were preserved to a sufficient extent that reminds the viewer what they are, to create the juxtaposition necessary for the meme to stick. It’s like noise music in that sometimes you want to preserve the original identity, but it in itself is not the attraction.
7. Transformative nature of memes
There is one big hurdle I think we need to decide, each for yourself. Do you think in today’s mass media society, the pieces of popular culture created and conformed to feed into our feeble minds, belongs to you? Or does it belong to those who created it? Remember, it’s inside your mind.
8. The Lockean balance
9. Redefining the public domain – who owns culture?
I suppose the last question is one that needs to be answered early on. If a movie like Snake on a Plane can be copyrightable, memes would be generally. However what’s the “meme” in SoaP isn’t the film itself, but the shtick and the hype surrounding it.
This is one of the other emerging area of law that is, for the most part, poorly chartered and thought-out. I trace it from the perspective of copyrightable fictional characters (who are some of the best memes themselves, to me). MGM v. Honda is probably the big turning point for it legally, but where does it end?
10. Are memes copyrightable?
I hope this helps you (and me) to focus a bit where the issues are today, and why it is relevant.
Well, why is it relevant? Fanfiction? Doujinshi? AMVs? Even cute little blog posts like Yuribou’s interviews? Why, what about the vibrant fan art or non-fan art that we use, for granted, as avatars, wallpapers, photochopped jokes and e-cards? It all can matter.
And lastly, this is a part of series of entries: