Yet another example of how copyright exclusivity lags behind well-established "copynorms" and threatens to chill online free speech and creative expression.
"Socially Awkward Penguin" is a known starlet of Internet meme culture. But it also happens to be the intellectual property of National Geographic. In the past year, Getty Images (the company's licensing agency), has pursued multiple infringement cases involving the meme against a host of blogs and other posters, most of whom were pushed into agreeing to non-disclosure. However, when Getty attempted to collect licensing fees from a German blog called Geek Sisters, its parent site, getDigital, publicly posted Getty's letters online. And now, that has provoked a conversation about what copyright protection means in an era characterized by an abundance of online creative expression, remixing, and file-sharing.
'The Awkward Penguin is not just a random image we stole from Getty’s database, but one of the most well-known Internet memes,' the company protested in its blog post. Said Bastian Krug, the online marketing manager at getDigital: 'We have no idea why they chose us.'
National Geographic/Getty's moves seem opportunistic, if you ask me. (Maybe Murdoch is to blame.) Indeed, others feel the same way. Krug and his colleagues suspected the company was targeting small blogs that aren't necessarily equipped to push back against a powerful industry player like Getty. In the end, getDigital settled; litigation is expensive, after all.
Interestingly, there hasn't ever been a court case like this, but perhaps I can weigh in on what might happen should a small-time blog opt to enter into litigation against a larger company, which doubtless is armed with a deeper coffer for legal fees.
If Geek Sisters decided not to settle, it would most likely have argued fair use. On the statutory end, the line between what is considered a "derivative work" and what is viewed as "transformative" under Fair Use is rather opaque. I think it would take Rowling's Sorting Hat relatively more time to decide where to house the meme. If the meme is considered a "derivative work," companies like Getty have every right to seek damages and fees. But if it's "transformative," bloggers and Internet users would be able to go on their merry way and legally continue to use, alter and share the image.
On the one hand, we've got copyright exclusivity, gilded by not only the Copyright Act, but also the Constitution (see Art. I, Sec. 8, Cl. 8):
- Sec 106 of the U.S. Copyright Act ("Exclusive rights in copyrighted works") defines the six exclusive rights copyright owners enjoy over their work, and two of those are:
- the right "to prepare derivative works based upon the copyrighted work" and
- the right "to reproduce the copyrighted work in copies or phonorecords."
On the other hand, Fair Use provisions statutorily circumscribe the scope of that exclusivity:
- Sec 107 outlines limitations on exclusive rights. It states the following: "Notwithstanding the provisions of sections 106 [see above] and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
- the effect of the use upon the potential market for or value of the copyrighted work" (emphasis added).
As you can see, the criteria for what constitutes a "fair use" is intentionally broad, thereby requiring fact-heavy investigation. With respect to the "Socially Awkward Penguin" meme, a lot would depend on the nature of the purpose and character of the alleged infringer's use of the image in question, particularly whether it was used in a commercial capacity.
Personally speaking, I think of memes as a means for online social commentary, satire, or just plain humor. Especially on sites like Reddit and Facebook, a popular meme can function as an "inside joke" of sorts that's shared within a large community.
In any case, Geek Sisters wasn't using "Socially Awkward Penguin" for commercial purposes, but since the blog settled, analysis of its fair use of the meme never took place.
"While getDigital is a for-profit retail company, similar to Virginia’s Think Geek, Geek Sisters is a non-commercial blog — in fact, it’s pretty damn obscure. (The penguin post got no comments, and has never been shared on Twitter or Facebook.) . . . In the six years that Getty and National Geographic have allowed the meme to flourish, it has far transcended Mobley’s original photo: It’s a remix, a discourse, a pastiche assembled — like so much of popular Internet culture! — from the aggregated efforts of millions of people."
This case is a clear example of the rigid line copyright law has drawn between exclusivity and access.
But the dichotomy we see here doesn't stop at memes. Popular music genres like hip hop and EDM, for instance, also come within the fold. At least the meme case has a strong fair use argument, since the blog's use of the meme was non-commercial. But isn't there a potential argument argument for fair use to make room for benign commercial uses of works (e.g., Girl Talk's collage-style tracks)?(Notice how Section 107 describes acceptable uses of copyrighted works as non-commercial or for non-profit purposes.) Sampling, collaging and remixing are stylistic choices borne out of technological advancement and are key not only to Internet culture in general but also to Hip Hop and EDM artist, for example. Ergo, I think the issue should be framed as a question of policy, rather than one of black-letter law. We should ask ourselves: Is it sound to construe collage-style uses of copyrighted material as infringing? Should we liken them to mass online piracy?
Only time will tell how major content industries and lawmakers will choose to respond to future cases like this one. I think figuring out a way for the law to balance i) maintaining incentives for artists to continue to create cultural works with 2) facilitating public access to and use of cultural works will be a formidable, but important challenge, but a necessary one for bringing Copyright Law up to speed with today's technology.
Want more? Check out my thoughts on copyright exclusivity and its rightful place in the Information Age by... clicking here!