In November 2015, a Twitter user by the name of @updog7 scanned and posted every page of Josh Ostrovsky’s (@thefatjewish) book, Money Pizza Respect, on Twitter. Updog7 does not appear to be affiliated with Ostrovsky, in fact, the name itself is thought to be a reference to an alleged front account Ostrovsky made (@uptownfunkdog) after backlash against the amount of “stolen” jokes he posted on his account without attribution. In theory, Ostrovsky would credit the account @uptownfunkdog so that it would appear he was crediting the originator of the meme, but was ultimately cutting out the original creator in a less identifiable way. There’s no direct evidence of @updog7’s identity or the purpose of the tweets, but it seems reasonable to assume that it was a tongue in cheek response to the behavior Ostrovsky is primarily targeted for: unauthorized copying.

A similar copying spiral arose out of appropriation artist Richard Prince’s recent Instagram series. In the series, Prince took screen shots of images he found on Instagram (including an original comment he made under the photo) and printed the screen shots in a large format. Prince sold these works for $90,000. One of the accounts that Prince copied from, the SuicideGirls, responded by selling prints of the same images Prince used (in the same format of his prints) and selling them for $90 a piece. Unlike Ostrovsky who received the large portion of his backlash in a response to his lack of joke attribution, Prince received backlash (and some praise) even where his attribution was interwoven into the work itself. Indeed, a simple attribution on the tag of a @thefatjewish post seemed to cure other comedians’ concerns of fairness.

Copyright and meme culture are at odds in very much the way that copyright and appropriation art (or more broadly, contemporary art) are. Social media and meme culture might have an even more strained relationship with copyright than contemporary art. A legal copyright claim against someone for stealing a meme seems like it would be ineffective in stopping the infringer and too much of a financial burden to be a reasonable recourse for the infringed.

A response in defense of Ostrovsky is that while it’s true that he was not the original author of many (most? all?) of his Instagram posts, he had the vision to compile those jokes and use that momentum to gain followers and turn himself into a brand. While one comedian may come up with a great joke-turned-meme, she might not be the best source of a consistent stream of content that appeals to a given follower. Ostrovsky has capitalized on his success as a curator of jokes.

The critics of Ostrovsky and Prince rely on a similar strain of criticism: these two famous guys are capitalizing on the work of the hard working little guy who relies heavily on the content that Ostrovsky and Prince are stealing. The harm from this stealing, however, differs from one to the other. Prince can, in theory, harm the direct market of an artist he appropriates from, her derivative market, and possibly cause reputational damage, which might ultimately lead to diminished brand value. Ostrovsky, on the other hand, would not likely directly harm the market of a comedian by appropriating her joke; this harm, instead, would be exclusively reputational (which could turn into economic harm over time). Does the difference in harm have any consequence with how these two issues should be addressed legally?

On the one hand, it seems that copyright is ill-equipped to deal with meme culture and the harm is not as severe as the worst-case scenario in the art world, however, on the other hand, Ostrovsky’s behavior falls squarely into the type of behavior copyright was intended to protect against. Ostrovsky doesn’t seem to be appropriating this content for anything other than the “lazy” capitalization that copyright law seeks to prevent. Putting aside whatever transformative effect his comments might have on a post, his mere “sweat of the brow” in finding the “best” jokes available in the social media sphere is not something copyright honors as copyrightable material in the first instance, nor as a fair use defense in using other copyrighted works. Further complicating this situation is the fact that simple attribution seems to be enough of a remedy for most original meme creators. Perhaps, then, the legal response to appropriation should be more nuanced when dealing with social media.

 

Katharine Haydock is a J.D. candidate, 2017, at NYU School of Law.