Mutating Internet Memes and the Amplification of Copyright’s Authorship Challenges
22 Pages Posted: 13 Nov 2018
Date Written: October 21, 2018
Collaborative creativity has long been recognized as valuable to society, and has also long represented a challenge to copyright law’s authorship considerations. Over time, the courts have developed and applied an authorship test that focuses on notions of formalistic intent and hierarchical supervision – a test that often acts to reinforce the existing power structure of traditional creative industries.
The internet has evened the playing field for access to the means of creative production and has therefore amplified the imperfect nature of the authorship test, exposing the fact that courts have never developed a clear and adequate method for analyzing what it means to be considered an “author.” As the traditional means of production break down and a growing number of amateur creators enter the fray, a test that presupposes detailed contracts and sophisticated negotiations as the baseline for acceptable behavior feels increasingly obsolete and is of deepening lack of utility to courts.
This Article critically examines copyright’s authorship test as it has developed through the twentieth century, using recent cases to demonstrate how it is inadequate to meet the needs of twenty-first century productivity. It then turns to the phenomenon of mutating internet memes that depend on sequential collaboration to result in massive amounts of rich creativity. The Article proposes that a refocusing of the authorship test on the creative contribution of the author would better align with copyright’s incentivizing purpose. When applied to mutating internet memes, this re-focused test will result in a massive number of “authors,” given the number of internet users who participate in a mutating meme. Therefore, courts should be comfortable with declaring mutating internet memes to be works without authors, thereby protecting memes from censorship from any one contributor.
Keywords: memes, internet, authorship, copyright, collaborative creativity, collaboration, author, creator
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