To get a sense of how messy copyright protection has become in the age of Internet meme-dom, start by traveling back in time with me to last year, right after a very famous cat was e-born.
It’s April 2011, and it's been a few weeks since you checked into YouTube. Someone shows you a video of a frizzy-haired girl wearing pointed cat ears and standing in front of a hand-painted rippling rainbow that looks like the backdrop to an elementary school musical. The girl is playing a song on the violin that sounds a little like “Cotton Eye Joe” whilst staring intently just off-screen, wearing a mysteriously wry, self-satisfied smile, a bit like the Mona Lisa’s. The video doesn’t change. It’s just the same shot, the same smile, the same tune on the violin, on and on for two minutes and 15 seconds.
Your first question would probably be, “Why the hell am I watching this?” Your second question might be, "Why have half a million other people also watched it?"
The original "Nyan Cat" GIF, by Chris Torres, aka PRguitarman, and the video that made it famous, by Sara Reihani, aka saraj00n.
The video, entitled “Nyan VIOLIN,” was a mimetic spin-off of another video released just a few weeks earlier called “Nyan Cat”—a 3:37 loop of 8-bit animation depicting a cat with the body of a Pop Tart, flying through space with a rainbow streaming out of its ass. Since it was posted on April 5, 2011, it has earned more than 89 million views, and set into motion one chapter in a long and sticky saga about the visual jokes, references, and ideas that fly around the internet--and the laws designed to stop them dead in their rainbow-colored tracks.
Improbably hilarious and life-affirming--the philosopher Henri Bergson once called repetition central to comedy--“Nyan Cat” was itself, like many Internet memes, a mash-up, a repeating of previous ideas. At the center of the video was that animated cat, which had gone viral just days before, when its creator, a young, Texas-based artist named Chris Torres, posted it as an animated GIF to his website.
Now the flying cat was set to music, a Japanese Vocaloid song called “Nyanyanyanyanyanyanya,” by the Japanese artist Daniwell. If you aren’t familiar with Vocaloid music, the song was originally written to be “sung” by Hatsune Miku, a blue-haired Japanese songstress who is neither an actual singer, nor has actual hair, but is a cartoon persona created to accompany a singing synthesizer application. And a metaphysical vortex tears a rift in the universe that swallows us all.
According to Know Your Meme, which has thoroughly documented Nyan Cat’s history, the original “Nyan Cat” video was taken down in late June 2011, by YouTube, which cited a copyright claim by Torres, aka “prguitarman,” the artist who created the original pop-tart cat GIF. Torres immediately posted a note on his personal blog denying he had anything to do with it. “I did not file a copyright complaint to YouTube about the Nyan Cat Video,” it read in giant red letters. It was precautionary; Torres was already being inundated with hate mail. “People are flagging my videos on Youtube and giving me death threats just like upstanding Internet citizens usually do,” he wrote. “Good job.”
One piece of hate mail he cited pretty well summed up the reaction and where it was coming from in a way that, literally, becomes obvious from the first word:
"your an asshole. why did you copyright nyancat??? we loved that video, and so did youtube. but you had to go be a douchebag and copyright the video and take it down. fuck you prguitar man. the internet hates you. i hate you. go burn in hell. put the video back up and we will love you. also, that poor person! she/he was lonely! nyan cat was the only video that she/he had views on. and you took it from that poor person. i want you to leave the internet. leave. just leave. we all hate you now. you can hate us back. but we dont care. just go. and never come back. your the meanest mother fucker in the world. go."
YouTube began its meteoric rise on the back of copyright-violating content (remember "The Chronicles of Narnia"?), but today it employs the most sophisticated copyright protection system of its kind. Called ContentID, the system automatically scans uploads for any signs of copyright violation, and, depending on the content, either allows the video to stay online but provide advertising revenue for the proper owner--or executes takedowns like the streaming internet's judge, jury and executioner.
While its strict approach has been instrumental in making YouTube legitimate and appeasing Hollywood and the record companies, ContentID also has a notorious reputation of being wrong. In August, YouTube infamously took down NASA’s own footage of the Mars rover landing, just a few hours after it landed, due to a rogue claim by a small news organization. In September, the official video of Michelle Obama's address at the Democratic National Convention also fell victim to ContentID; a few days earlier, a similar algorithm cut short the livestream of the Hugo Awards, apparently due to the broadcast of a few videos shown during the ceremony (they had already been authorized).
The message Torres posted on his website in April 2011
YouTube also has a history of being right in ways that aren’t YouTube’s fault, but are, nonetheless, absurd, such as when it flags videos of Dr. Martin Luther King’s “I Have a Dream” speech, citing a copyright claim by EMI publishing, which owns the rights to the speech's performance. As Bob Jacobs, NASA’s Deputy Associate Administrator for Communications, aptly noted to Motherboard after the NASA debacle, “The good thing about automation is that you don’t have to involve real people to make decisions. The bad thing about automation is that you don’t have to involve real people to make decisions.”
In the case of Nyan Cat, Torres was telling the truth; YouTube was wrong. The site soon admitted as much and put the video back online. But despite the confusion, the Nyan Cat incident made two things clear: First, this was some weird, protean legal territory we were traversing—territory that certainly wasn’t anticipated by the framers of the 1998 Digital Millennium Copyright Act (DMCA); second, when the Internet likes something enough to meme the shit out of it, it's best not to fuck with the Internet by invoking copyright. It will threaten your life, call you an asshole and ask you to leave.
The “Me” in Meme
As the internet meme has moved from imageboards to popular culture in recent years, copyright law has become an ever more tangled web of memes, manipulation and missed opportunities. On one hand, the internet’s sense of lawlessness has encouraged talent to borrow and genius to steal (to, well, borrow from Oscar Wilde), in such a way as to encourage a wholly new and seemingly infinite post-structural art form.
On the other, monetizing those creations—whether one’s own, someone else’s, or a mashed-up combination of the two—is fraught with legal obstacles. As Scott J. Slavick, an intellectual property attorney from Chicago put it recently “Internet memes pose a number of intellectual property-related questions for companies.” The same could be said for meme creators and disseminators.
I emailed Slavick to see how simple it was for a meme-creator to stake a copyright claim. The basics are actually quite straightforward: If you create something original—that’s to say something that doesn’t contain other copyrighted material—you own it.
“As soon as the material is created, affixed in a tangible medium, it is subject to copyright protection,” Slavick wrote in his email. “Registering a copyright provides one with a number of advantages, such as the opportunity to potentially receive statutory damages, and to confer federal jurisdiction, but registering a copyright is not required in order to receive protection for it.”
In other words, Torres would have been well within his rights to shut down the Nyan Cat video, just as YouTube wrongly thought he had wanted. (He filed a counter-complaint to YouTube to get the video reinstated, which it was, 24 hours later.) The video that made his pop-tart cat famous—the one with more than 89 million views—was actually a pastiche created by Sara Reihani (YouTube handle, “saraj00n”). Legally, it violated Torres’s copyright. But if Torres had decided to enforce his copyright right away, we probably wouldn’t be writing about his silly pop-tart cat illustration right now.
The copyright filing for "Nyan Cat," from the US Copyright Office. Edited to remove Torres' address.
In the world of Internet memedom, “original” is an elusive term. One can imagine Reihani wanting to stake her own copyright. After all, it was her creative mind that synthesized that sugary, irritating, but implacable alchemy of elements into a single video that made the Nyan Cat famous. But Reihani’s video incorporates elements from at least two different, more original sources: Torres’s Pop Tart cat and the song by Daniwell. Her claim to copyright would be dubious at best.
One could say the same about any number of popular memes, if not most of them. Someone, somewhere owns the rights to the first Ryan Gosling photo turned into a “hey girl” meme on the “Fuck Yeah! Ryan Gosling” Tumblr page. Just like Hasbro definitely owns the My Little Pony images all those Brony weirdos are obsessively creating and getting off to.
Tracking down or proving ownership isn’t always easy. “Sometimes it can be very difficult to pinpoint the creator of the first instance of a meme,” said Don Caldwell, senior reporter at Know Your Meme, in an email. “This is especially true for old memes that came from sites like 4chan, which is not only anonymous but only has a limited off site archive on Chanarchive.”
It also has nothing to do with whether or not yours is the face or likeness in the photo. Ownership of the image is all about the photographer or videographer. Some unwitting meme subjects have embraced their Internet stardom: Caldwell pointed to Blake Boston, known to the internet as “Scumbag Steve,” who, he said, “has embraced his meme and attempted to make a rap career out of it.” Others, like Ghyslain Raza -- aka, “Star Wars Kid” -- weren’t so primed for internet fame. As Alex Pasternack reported in 2010, Raza sunk into a deep depression after an act of online bullying that drew more than a billion views, and was eventually placed in a children’s psychiatric ward. His family later sued the families of the three children who leaked the video to YouTube for damages, resulting in a settlement.
People “have a right of privacy/publicity in themselves,” Slavick wrote to me. “If that right is violated, by being shown in a photograph without their consent, for example, the person may have a cause of action for violation of their right of privacy/publicity.” But bullying isn’t the same as copyright infringement. Appearing in a photograph, Slavick said, is not tantamount to ownership.
Still, Slavick told me, “proving you originated an internet meme [is] difficult, but not impossible.” For Torres, getting his image copyrighted should have been fairly simple because it was clear the image was his. But even then, “It was a very long uphill battle proving ownership of my work,” he wrote me in an email. In April, 2011, he filed for the copyright with the United States Copyright Office. Torres says he doesn’t remember exactly when it went through, but it took from three to six months.
A montage of various Nyan Cat iterations by YouTube user Mziekittenxoxo, set to a dubstep remix. The first minute is a live-action video of a Nyan Cat attack, and it's amazing.
At that point Torres was already playing catch up. “By the time I got around to doing it I found out that there were already several people who had filed for the copyright themselves and even the trademark,” he said. “It was a living nightmare! I was thrown into this new black market-style realm of the Internet and had to fend for myself.”
Now, it seems, he’s at least making some loot from all the merch. It’s probably fractional compared to the number of times his his image has been seen and memed and turned into stand-alone websites (one of the most life affirming derivatives turns the Nyan Cat into a pack of delighted dogs). To date, a search for “Nyan Cat” turns up about 103,000 hits on YouTube alone. Still, it’s better late than never. Since the copyright went through, a 2011 commercial for a Sprint Nexus smartphone used Nyan Cat in a commercial about internet cats. So did another commercial for Vitamin Water that also featured references to other popular internet memes like “Sexy Sax Man,” “planking” videos, the “Success Baby,” “Boom Goes the Dynamite” and others. Other successful partnerships include Nike, JAKKS Pacific (a toy maker), and Ripple Junction (t-shirt maker). More are on the way, Torres says, and they’re all finally making him money as he pursues his comics career.
“I feel without a proper copyright that I would have totally lost the grasp on my own artwork and none of this would have happened,” he said.
Despite the obviousness of Torres’s copyright claim, one could still imagine Kellogg’s, makers of the Pop Tart, going after Torres if they really wanted to be dicks about it. Such is the nature of so many Internet memes. Each is its own onion, composed of layer upon referential layer, each a time capsule, of sorts, of the culture that spawned it. In this context, terms like “ownership,” “rights,” or “originality” seem almost laughably quaint.
Someone Somewhere, Owns It
Torres accepting his Webby Award (photograph by Rusty Blazenhoff)
“Given the vast popularity of some of the most widely disseminated memes,” Slavick writes in his article, “it is not surprising that corporate marketers increasingly seek to harness this popularity to promote commercial interests.” Like Sprint and Vitamin Water, major brands like Nike, McDonalds, Cisco, and General Motors, he notes, are building their own images on crowd-sourced Internet memes, much the way Viagra markets itself with washed-up flower power, or the way Danske Bank recently tried to capitalize on the Occupy movement.
The list of companies riding that 8-bit rainbow and cashing in on memedom is growing. This time last year, Kohl’s ran a Black Friday ad based on that unfortunate song by Rebecca Black called “Friday”; around the same time, Blizzard Entertainment, makers of the video game, “World of Warcraft,” made an ad based on the long-standing Chuck Norris meme. Wonderful Pistachios has capitalized on both the “Honey Badger” and the “Keyboard Cat.”. It’s the hip thing to do.
As Slavick notes, however, corporations should be wary of just grabbing any old meme for their own for-profit use. If a for-profit company used Torres’s Nyan Cat image today without his permission, he would win in court. “As owner of a copyright, the meme creator holds a bundle of exclusive rights to use and profit from the work he or she creates, including the right to reproduce the work, prepare derivative works from it, distribute copies of it, and display it,” Slavick writes. “The owner of a copyright can also profit from licensing some or all of these exclusive rights to others.”
Furthermore, a company has to be aware of the layers of ownership underpinning the meme in question. Within most purely creative, non-profit contexts, DMCA rules of fair use protect the average meme-maker from, for example, getting sued by Ryan Gosling’s photographers. Companies sometimes wrongly assume the same fair use protection applies to them, Slavick says. Some element of copyright ownership, however elusive, pertains to every Internet meme somewhere in its mashed-up, meta-referential history, whether it’s Torres' Nyan Cat original image, or the copyrighted photograph used in the Ryan Gosling meme.
Nyan Cat in smooth jazz form, YouTube Orchestra edition, and in a Sprint ad.
A rage comic by Torres.
For companies to which memes are not expressly or implicitly granted license by their copyright owners, any use of a meme in connection with a profit-making venture is fair grounds for a lawsuit. As such, even posting a meme on a corporate Facebook page is verboten. Penalties can range from $200 to $150,000, “depending,” Slavick notes, “on the ‘innocence or willfulness’ of the infringer.”
It’s a steep price to pay for hipness. But it may be what saves the internet meme from becoming overly co-opted for commercial use. It’s something of which meme-creators with solid claims to originality should be aware. And it's a warning about the treacherous terrain that lies ahead for a culture built on copying, a future that might not simply piss off the Internet, but change the way that memes are made.
“If [corporations] have not already been sued, I am sure it will happen,” Slavick said. “Because not only individuals, but many companies, misunderstand the availability or, as is often the case, the non-availability of internet memes.”
Which is exactly as it should be. Copyright is supposed to protect the creative products of people like Torres, even when they’re internet memes. Still Torres knows that Internet mash-up culture buttered his bread. He can’t take all the credit. He recently formed partnerships with the owner of the “NyaNyaNyaNyaNyaNyaNya!” song in the Sara Reihani video that made Nyan Cat famous, and with Reihani herself -- to pay homage to the incessant copying culture that made his particular cat famous, and "make it fully legit,” Torres said. “To me, it's less about cashing in and more about keeping it classy.”
@austinconsidine. Follow Motherboard on Twitter and Facebook.
Top image by Dan Stuckey