Welcome back to Why’d You Push That Button! Season 2 starts today, which might be a fun little surprise for you because honestly, we haven’t done a great job of remembering to talk about it on Twitter!

Our first episode is about memes and the law, which sounds both boring and scary and is neither. First, we chatted with Vox Media’s Sara Reinis, who told us an unsettling story about her first viral tweet. In short: Her life was turned a little upside down because she made a meme using a photo of some birds, and did not realize the birds were someone’s family. Fair enough, Sara, but maybe all of our listeners will learn from your mistakes!

Then we talked to Drew Scanlon, best known as the “white guy blinking meme.” He told us all about how his life has changed since his eyelids became the most famous ones on the whole internet. Honestly, it doesn’t sound that bad! But I would probably have less patience with my friends and acquaintances than Drew does. He says it doesn’t even bother him when they introduce him to people as “the blinking guy.”

Finally, we talked to Tim Hwang about all the legal issues buzzing around these stories. He’s a lawyer, as well as the founder of the meme convention ROFLCon, and the director of Harvard and MIT’s Ethics and Governance of AI initiative. You can listen and read the transcript below, or find us anywhere else you find podcasts, including on Apple Podcasts, Spotify, Google Play Music, and our RSS feed. And get caught up on season 1 if you’re late to the party.

Kaitlyn Tiffany: So, to be honest with you, when we decided to do this episode we had no idea how copyright plays into memes. It was kind of an idle question like, does it? We don’t even know. If you could explain in which ways it does and in which ways it doesn’t a little bit, that would be very useful to our audience and to us.

Ashley Carman: If you a find a photo on the internet, can you just use it?

Tim Hwang: Right, so it’s a big, open question and has been a big, open question on the internet for some time. So I think that the place to start from this is actually from the basics, which is: what is the internet and what does it do in culture? I think one way of thinking about what social media is and what internet culture is is that it’s a huge... it’s in some ways a huge photocopier. You can take an image, you can do something to it, you can share it out again. It’s a pretty permission-less sort of culture, right? If you see cool content online, there’s nothing stopping you from taking it and using it. And this has been, on one hand, I think, one of the things that have made internet culture so vibrant and so active and so good, I guess, at producing things that are just kind of amazingly funny, or certainly striking in the very least, and that’s been the case on the internet for a long time. It was old by the time that we were running ROFLCon in 2008, and we’ve seen another decade since that conference first got started.

I think, on one hand, one way of thinking about all of this is that the internet has kind of enabled this sort of amazing culture where it’s possible for you to take and iterate on something, and that process happens really rapidly. I think one of the most interesting things about the internet is how people can sort of build on one another and constantly come up with in-jokes within in-jokes within in-jokes, and so at a certain point, it’s sort of impossible to understand unless you’ve been part of this rich sharing of jokes and internal references. And the law has played a really interesting role in all of this. I think in some ways copyright law was just sort of not ready for a lot of what the internet brought to the table. For sure, we saw it initially in the case of things like music, but increasingly everything is sort of meme-ified, which is one of the things that makes it really complicated.

Now, under copyright right law, it’s true, you do have sort of the legal rights to challenge someone. Certainly under the DMCA, you have the right to get that content taken down off of a platform if it violates your copyright. And copyright is very broad from a legal perspective. The minute I create something, I have copyrights. I have rights over that content, and so really anything I create, if it is taken by someone else without my permission and copied and shared, I do theoretically have the right under the law to get it taken down, to control it, to protect and constrain that content.

Now, the complicated thing is that copyright has existed in limbo because, at least under United States law, we have what’s known as fair use, right? Under the law, basically, the idea is that culture evolves because people can take culture and use it for their own purposes, and the doctrine of fair use basically says that under a specific set of circumstances you can take that content and use it as your own. And so those two things have always been kind of in tension with one another on the internet.

So on one hand, people say, “Well, this is under my rights under the copyright system, and I should be able to take things down.” On the other hand, it’s a battle with fair use, which can include things like, “Oh, well, I’m using this for the purposes of parody,” or, “I’m changing it in such a way that lets me use it without you being able to control it.” It’s a really fuzzy area of law, which is one of the reasons why memes have proven so complicated, particularly as you think about how... back in 2008, I think it was just like, “Oh, yeah, Lolcats are a thing,” but now lots and lots of things are meme-like in the way they’re designed.

Kaitlyn: So one case that I was reading about that I thought was super interesting was the Socially Awkward Penguin, which was considered the property of National Geographic. They had Getty Images basically pursue it for them to get people to take it down, which is something that makes sense to me, but it seems like it would probably not work in the other direction, like a big company making random people take down their memes. A random person probably can’t make a brand take down a re-appropriation of their meme. I guess this is how the legal system always works.

I mean, totally. So, yeah, you’re pointing out a totally true thing, which... so far we’ve just been talking about what is the law, right? What’s on the books. And there is a really strong argument for fair use, and particularly memes being what they call under the law a “transformative use,” something that uses this content in such a way that’s so different from the original that we basically don’t think it’s the same thing.

Kaitlyn: Like art. It’s art, right?

Yeah, totally, right. And so there are lots of examples, and a lot of the lawsuits that have existed in the past go to essentially this battle over, “I took your image and I did something to it, and now it’s my art, and so you can’t get paid for that,” or, “You can’t control what I do with that.” And that is a big issue in fair use, but one of the things that you’re pointing out is this really tangled relationship, particularly as the internet has evolved, around who can actually get the benefit of the law.

And so one piece that you’re referring to is a really good one, which is back when we were running ROFLCon from 2008 to 2012, the notion of marketing agencies doing quote-unquote “viral videos” were like... that was still kind of a new thing that they’re trying to figure out, but now companies really totally understand that, “Look, if there’s a meme, we can kind of build our own commercial version of that and ride that wave, and it’s good for us for marketing purposes.” And I think that introduces a really interesting question where I think in the early days of the web we said, “Fair use is awesome,” because it basically allows people to take work, reiterate it, and turn it into something awesome, and to even take the work of corporations to do that.

But now we actually see the reverse happening, where you see content being turned into something online organically, and then companies trying to ride on top of that, and then there’s a really interesting question is like, well, when that happens do we feel differently about how justice is or whether or not it is the copyright ecosystem we want to live in.

Kaitlyn: I don’t know if you’re familiar with the meme called the White Guy Blinking.

Uh-huh, yeah, I’ve seen that guy.

Kaitlyn: Yeah, I think he’s a pretty good sport about it. I don’t think it really bothers him, but I’m curious if it had really bothered him, would he have been able to do anything about it?

Right, right. I mean, that’s kind of the interesting thing about some of this stuff is that it... Copyright is weird because it tangles up what’s sometimes personal with what’s commercial. So sometimes in the fair use case, it’s kind of like, “Ah, I had this piece of content, and this meme is such a huge deal that if I could license it and put T-shirts out I could make a million dollars,” and that’s a certain kind of use of copyright law to try to get stuff taken down.

But I think there’s also this other use, which is just kind of like for personal reasons we’re using copyright to take down content. And, again, I think this sort of fits in a not-so-perfect way with copyright law. One of the really interesting things that we’ve seen with copyright law in the last few years is, for example, that there are issues of doxxing online or harassment online or people release revenge porn online. Under American law, there’s actually not a whole lot of great privacy laws you can use to try to protect yourself against that. And in fact, a lot of people end up using copyright law because they say, “You’ve basically taken my personal content, and I should have the ability to take that down or otherwise prevent its use.” And so copyright’s weird in that respect, that it isn’t just about the money but it’s also about these sort of situations where people personally feel very strongly about what happens to something they created.

Ashley: Do you feel like the legal system has a lot of catching up to, or do you feel like the laws are actually pretty good for handling meme issues?

I still think that there’s a fair amount of catching up to do. I mean, I think that the fair use structure is a really good one, but it’s clear that in some cases that we’re trying to struggle to see how this framework really fits into memes, and it gets more and more complicated as more and more content behaves like memes online and actually as the entire market of internet and the market around internet culture changes. I think we are in a very different world than we were 10 years ago, where we could sort of say, “Hey, isn’t it really cool that people are just creating a culture on their own?” And I think that’s still important to protect, but like I was saying, I think suddenly now it’s parallel to big companies and people using copyright for ways that might suppress free speech, and also for uses of protecting themselves. In some ways, a lot of stuff is all tangled up in copyright now, which maybe leaves it less of a good in doing any one given thing.

Kaitlyn: Something that’s wild that I didn’t know until we were talking about this podcast is that Know Your Meme has a whole section of their website that’s just a log of things they had to take down because of copyright. That’s crazy! It’s influencing the more or less definitive history of internet culture and had to take down something like 40 entries. That’s wild to me.

Yeah, I think that’s right. Again, this is a little bit about why copyright is so confusing because it protects so many different interests in some sense. You’re sort of like, “Okay, there’s a really important need to preserve the history of web culture.” I totally believe that in a really serious way. But particularly under the DMCA — the Digital Millennium Copyright Act, which kind of governs how a lot of platforms like Google or YouTube or whatever deal with copyright — the default is to take things down, right? And so this has certainly been abused in a bunch of cases where basically people were like, “Well, I basically want to suppress information, and we’re going to use copyright as a tool to do that.” I think it’s, again, another really complicated situation.

Kaitlyn: Yeah. Man, this has really opened up a whole can of worms in my brain.

Yeah, sorry about that

Kaitlyn: Now I’m thinking about people’s definition of what a meme is sometimes is literally just like a caption contest. They’re just like, “I took this photo and I wrote something under it.”

Ashley: Yeah, we talked about that, too, because it’s really hard to define. To me, it’s just like... Literally, I think of a meme as just a picture on the internet that you put a funny caption with. That’s it. That’s how I think of a meme.

Kaitlyn: Lots of types of memes are art, I think, but is that art?

Yeah, some people would say it is, ‘cause sometimes those captions are amazing and totally re-contextualize what it is. But, yeah, I agree. I mean, it’s like... yeah, what is a meme? And also I think there’s a real question on... So one of the big, important questions is... clearly, it’s a nonprofit use, but the question is do memes affect the market for the original image? I don’t know. Maybe not. No one’s selling fewer pictures of a cat photo because someone added a caption to it or something like that. And so, again, I think there’s a lot of really interesting edge cases to argue here. I think it’s one of the reasons lawyers like it so much.

Ashley: And wasn’t this sort of the big... I don’t remember if this was last year or a couple years ago, but when there was all this talk about Fat Jewish and Fuck Jerry, basically the meme providers getting upset at these content curators for posting memes.

Kaitlyn: That’s such a generous term for people who rip memes and put them on Instagram.

Ashley: Yeah, wasn’t that part of that whole debate, too, was like the credit? They weren’t giving credit, and then they gave credit, and then it was all kind of worked out through credit? Just giving credit seemed to resolve some issues.

Totally, right. And again, I think we’re talking about the distinction, again, between what is formally expected under the law — like if we went to court and fought about it, what would we argue about — versus kind of this weird universe that we live on in the internet, which is kind of in its own internet netherworld, because there’s a lot of practicalities about finding someone, suing them, fighting out the fair use case that. In practice, it doesn’t happen all that much. And so I think I agree with you. One of the really interesting things that we’ve seen is that there are these certain norms that have evolved online that basically help people navigate or maybe kind of help to determine when things are okay or not okay. But those aren’t written down. They’re totally informal rules that govern whether or not someone will bring in the law to go fight this.

And credit, I think, is a really powerful way of thinking about some of this stuff, where, particularly for these cases where someone just wants to be identified with a cool thing they did, sometimes credit is all you need, just to say that,“Hey, this is the person that invented this thing,” or, “Here’s the person who took that image.” But part of what makes it complicated is that the expectations on different parts of the internet are different, and it’s really difficult to tell from a photo of a penguin whether or not the creator of that penguin would be real pissed if you made a caption on it or something.

Ashley: I just keep thinking about Pepe, because he’s been so... the creator’s been so vocal about that, because obviously, Pepe has now turned into this terrible monster. And I’m sure at first he was maybe happy it was a meme, and then once the Nazis got hold, he was like, “Oh, God.” Now he has to start doing, I’m assuming, takedowns.

Kaitlyn: Well, when the Nazis first took over Pepe he was resigned to it. He was like, “It’ll come back around,” and then it got to a point where he was like, “Never mind.”

Ashley: And then it got worse. Oh, gosh.

So this was the original idea behind a project that was much more around the web maybe about a decade ago, Creative Commons, which is the idea of could people just signal when they were okay with someone using their stuff. But really that hasn’t taken hold in a really big way, and so, again, we’re still in this limbo. And there are so many edge cases, too, right? ‘Cause it would be sort of weird to basically... You go to a comic in the future and you’re like, “Here is a long list of things I think are okay versus not okay using my content for,” and I think we may see more of that in the future as people try to navigate this really complicated thing.

So imagine the Pepe creator. At what point do we want him to be able to use his copyright? At what point do we want him to not be able to use his copyright? It depends very much on who’s using it, how he feels about it. Does he think about Pepe as something that’s going to be a brand for his business, or is it going to be... or is it just kind of like he doesn’t want to be associated with it and it being associated with Nazis, for that matter?

But, yeah, I think part of the problem here is that we actually don’t have a great way of signaling what people expect when you use their content.

Ashley: And so would the only way that the law would change is just to have some of these cases go to a big court trial? Is that how that would happen?

Even before you go to trial, though, if you’re going to bring the lawyers in on this, there’s a lot of going back and forth and sort of being like, “Well, we could argue this,” “Well, we could argue that,” and so I think there’s a lot of posturing on the way to a court case. But it is, and I think it’s a right critique of the copyright system, is that it tends to favor people, like other parts of the legal system, that have money to spend on these sorts of fights. And so that makes it particularly complicated in the case that we were talking about a little earlier, which is a small creator gets their stuff ganked by a much bigger company, and that feels like a situation where we really want copyright to apply, but it becomes really difficult just in the practicalities of enforcing that copyright.