I live for RuPaul’s Drag Race … for so many reasons.  It has the familiar elements of all reality competition shows:  contestants compete in challenges; judges provide (sometimes harsh, typically pun-filled, always amusing) critiques; contestants throw shade at each other (light-hearted, venomous, and everything in between); and, ultimately, one queen is eliminated each week for not being quite as fabulous as her sisters.  (In the lexicon of Drag Race, RuPaul commands that the eliminated contestant “sashay away” as she leaves the stage.)  However, Drag Race has two things that other shows don’t.  First, it has drag queens with gigantic personalities and shocking talent.  These artists use makeup, wigs, fabric, and (most of all) wit to create characters, looks and illusions that can astonish.  They share deeply personal and sometimes heartbreaking stories as outsiders, stories of being bullied in school, of struggling with their identities, and sometimes of violence and sexual abuse.  But at the same time, they make you laugh.  A lot.  Second – and equally important – Drag Race has RuPaul.  Smart, funny, creative, quirky, an expert at building rapport with contestants, celebrity guests and the audience alike, RuPaul gracefully navigates the currents of the show, dispensing frank advice, wisdom and love.  Who wouldn’t want “Mother Ru” as a second mother?

When the first episode of Season 10 of Drag Race premiered last year, one of the contestants – Vanessa Vanjie Mateo – got more than her fair share of screen time. Her testimonial segments were among the best I’ve seen on any reality show.  (Trust me:  I’ve watched plenty of reality.)  Had I not been seduced by her charisma, uniqueness, nerve and talent (the four judging criteria used on Drag Race), I might have suspected that the disproportionate amount of time allotted to Mateo was a tell of what was to come:  tragically, Mateo was eliminated at the end of episode 1.  (And no contestant on any reality show wants to be kicked off first.)  However, rather than slinking down the runway in tears, rather than railing against the judges’ blindness to her obvious star-quality and the injustice of it all, Mateo turned to RuPaul (and the camera) at the end of the catwalk, posed, preened, and repeated what would become her sobriquet: “Miss Vanjie!  Miss Vanjie!  Miss Vanjie!”  (To understand what this looked like, watch this  clip.)  By leaving the stage in this fashion, Mateo made it clear to RuPaul, the celebrity judges (including Christina Aguilera), and the world that she would not be defined by her premature exit.  She was proud, she was talented, and she would survive.  While she may be leaving, she would not fade away.  This exit was also really odd … and ridiculously funny.  RuPaul fought, not entirely successfully, to maintain the composure demanded for the solemn occasion of an elimination ceremony.  (See here.)

Within hours of the initial broadcast, wickedly funny memes incorporating images and footage of Mateo’s exit began pouring out of the magical, primordial place where memes are born – in other words, out of the fertile minds of fans and followers armed with a laptop, the internet, and a basic editing program.  There are a lot of Miss Vanjie memes.  One begat another, and then another.  (Some of the best can be found in this compilation.)

My personal favorite is the Bart Simpson/Vanjie meme.  In the original clip from The Simpsons, Bart finds himself alone in a room filled with megaphones (who let that happen?) and quickly figures out that by stacking the megaphones in a row, he can amplify the volume.  When Bart repeats “TESTING!” into his tricked-out train of megaphones, the sound is deafening and causes nuclear-bomb type devastation throughout the town of Springfield.  (By all reports, Moe’s Tavern was spared.)  The meme in question substitutes “MISS VANJIE!” for “TESTING!” in six places in the 33-second clip.  What a difference.

When IP lawyers (myself included) see a funny meme like this one, instead of (or perhaps after) chuckling, we often ask ourselves:  did the creator get clearance, and, if not, how many different rights were potentially infringed?  The Bart Simpson/Vanjie meme incorporates footage from The Simpsons and audio from Drag Race, potentially implicating copyright; it features the Bart Simpson character, potentially implicating both trademark and copyright law; and it includes the voices of Nancy Cartwright and Mateo, potentially implicating right of publicity.  It’s highly unlikely that the genius behind this meme got permission from any of the rights holders.  Which raises the question:  did he or she need to?  

This question is an important one.  Although many (most?) people, at one time or another, have incorporated third party content (without permission) in public social posts or private texts, few (I am certain) have given much thought to what they were doing.  In this post, I briefly outline some thoughts on the copyright issues raised when third party content (including film clips, audio, and photography) is used in memes.  (I leave trademark and right of publicity issues for another day.)  My conclusion is that while I believe the use, without permission, of third party content in memes, as a matter of policy, often presents a compelling case for fair use under copyright law – at least where the use is not commercial and serves a socially valuable communicative purpose – I am not confident that courts, under current precedents, would consistently find them to be so.  

If you think that memes like these are frivolities that do not warrant serious investigation, think again.  The creation and sharing of memes has become an important way that news (hard news, soft news, real news and fake news) is shared, commented upon and processed.  The unauthorized use of third party content within memes must be evaluated in that context.  Indeed, the Vanjie meme phenomenon not only illustrates how news about an event that captured the zeitgeist can spread and be amplified through collective activity in the digital realm; it also demonstrates the real-world impact that can follow.  Due in no small part (I am certain) to those who created, shared and commented upon Vanjie memes, Mateo made her triumphant return to the Drag Race workroom when Season 11 debuted earlier this month.

The people had spoken, and RuPaul (no doubt sensing ratings gold) listened.  And, I am happy to report (Spoiler Alert!) that, this time around, Mateo not only survived the first elimination ceremony, she actually finished among the top queens.  Viva la Vanjie!

Copyright Law’s Policies and Purpose.  The purposes of copyright law, a purpose so fundamental it is embedded in the Constitution, is “to promote the Progress of Science and useful Arts.”  To further this purpose, copyright law presents a system of incentives: the author is offered exclusive rights (a “monopoly,” of sorts) to exploit and profit from her creation, for a limited period of time, as an incentive – a copyright “carrot”  – to spur on her creative activities.  However, it is crucial to recognize the purpose of copyright law is not to enrich the author; instead, the ultimate purpose is the intellectual enrichment of the public.  The creator’s (potential) financial enrichment is a byproduct of a system that enriches us all.  Copyright's incentive system expressed in emojis:

The Role of Fair Use.  Fair use is fundamental to furthering copyright’s goals:  if you don’t allow future artists to make certain use of copyrighted material, the result will be a restriction of creative production, and society will be the poorer.  At the same time, there must be limits on the permissible uses of someone else’s work without permission:  if you do not give authors enforcement tools to prevent others from encroaching upon their exclusive rights (including the right to sue for damages and injunctive relief for infringement), the system of incentives will be undermined, and fewer creators will invest the time and effort it takes to create works (or so the theory goes).  Why bother doing the hard work it takes to create something if others can freeload without consequences?  Better to sit on the couch and binge watch the entire season of Elite (which I highly recommend). Fair use analysis requires courts to try to strike a balance:  on the one hand, they must make sure that the author’s exclusive rights are sufficiently enforced (to keep the incentive system intact), and, on the other, they must be vigilant to make sure that the author’s rights are curtailed when doing so allows future creators to contribute to the progress of “Science and useful Arts.”  

Codification (Section 107).  Originally a judge-made doctrine, fair use was codified in the 1976 Act.  Section 107 lists four factors (which are not exclusive – meaning courts can go beyond them) to consider when evaluating whether a particular use is fair:  (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for the copyrighted work.  Section 107 also includes a preamble with a non-exhaustive list of uses that can be fair:  “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”  The Supreme Court has expressly instructed us that fair use analysis must be done with an eye towards furthering the underlying policies of copyright law, and that all the factors must be weighed and balanced against each other.

The Campbell Decision:  Transform vs. Transformative.  Justice Souter’s 1994 decision in Campbell v. Acuff-Rose Music – coming up on its 25th anniversary – has withstood the test of time.  If you haven’t read it in a while, you should.  In this decision, Souter embraces a nuanced, careful and calibrated approach to reconciling the inherent tensions in fair use.  He instructs us that fair use “is not to be simplified with bright-line rules” and requires case by case analysis and careful weighting of multiple factors.  And then he leads by example in the way that he analyzes the case at bar.

It was in Campbell that Justice Souter embraced Judge Pierre Leval’s transformative use metaphor as the touchstone for analyzing the first statutory factor (the purpose and nature of the use).  According to Souter, a use of a work is transformative if it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; [the inquiry] asks, in other words, whether and to what extent the new work is ‘transformative.’”

The transformative use metaphor itself reveals the inherent tension in fair use.  As many have noted, the word “transform” also appears in the definition of a derivative work, one of the exclusive rights reserved to copyright owners under Section 106.  Specifically, a “derivative work” is defined in part as any work “based upon one or more preexisting works” in any form in which the preexisting works “may be recast, transformed, or adapted.”  This means, of course, that some transformations are fair uses, and others are infringement.  Rather than being stymied by what, at first glance, may seem like a vexing paradox, the better approach (I believe) is to recognize that the metaphor invites us to view transformative use on a spectrum.  On one end are transformations that do not veer far from, and whose value is derived largely or entirely from, the original works on which they are based.  The impact that suppression of these works will have on society is minimal because society is sufficiently sated by its enjoyment of the originals.  On the other end of the spectrum are transformations that recast the original works so significantly, or that use elements from the original works to construct new works with an entirely different character from the originals.  The suppression of these works robs society of something new and beneficial more than it frustrates the ability of the “copyright carrot” to incentivize creative production in the first place.  Of course, in the middle, things get murky.  In this regard, fair use doesn’t differ from most other areas of the law.  Some similarity is substantial (and therefore infringing) and other similarity isn’t.  A friendly slap on the back is affection; an unwanted slap on the face is a tort.  And so on.  Line drawing is part of the law (and life).

Parody – “A Song Sung Alongside Another.”  In Campbell, the court tackled the question of whether 2 Live Crew’s song “Pretty Woman” was a fair use parody of Roy Orbison’s song of the same title.  The decision was the first clear enunciation by the Supreme Court that a parody could qualify as a fair use.  While that was hardly startling (lower courts had held this in earlier decisions), the way the court defined and categorized parody was (I would argue) somewhat specific and narrow.  Parsing through various definitions, Justice Souter wrote that parody’s “germ” derived from the Greek word parodeia – a “song sung alongside another” – and that “the nub of the definitions, and the heart of any parodist's claim to quote from existing material, is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works.”  Souter reasoned that borrowing is more justifiable (and likely transformative) where the new work “at least in part” comments “on the substance or style of the original work.”  Souter distinguishes parody (which “needs to mimic an original to make its point”) from satire which lacks commentary (which “can stand on its own two feet and so requires justification for the very act of borrowing”).

The Defendant’s Work Need Not Be a Parody (or Even Transformative) to Qualify as a Fair Use.  It is important to note that Souter did NOT say that the use of the “victim work” (his words) must be transformative to qualify as a fair use.  He also did NOT say that satires and other works that do not comment on the “victim work” cannot qualify as fair uses.  On the contrary, he specifically tells us that “transformative use is not absolutely necessary for a finding of fair use” and that commentary is not absolutely required.  True, Souter warns that where transformativeness is lacking, “the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish).” He cautions that fair use is unlikely where “the alleged infringer merely uses [the original work] to get attention or to avoid the drudgery in working up something fresh.”  But he also instructs us that in cases where transformativeness is slight or lacking, the other statutory factors “loom larger” and the balancing must continue.  In other words, there is an inverse relationship between the level of transformativeness and the amount that permissibly can be borrowed from the “victim work” (factor 3).  Similarly, he tells us that the more transformative the work, the less likely that it will cause cognizable harm to the market for the “victim work” or its derivatives (factor 4):  Clearly, Souter did not shut the door for finding non-transformative works as fair uses; he left it ajar.  The mountain may be steeper, but even Everest is surmountable.

Campbell Wasn’t a Slam Dunk.  A quick aside: ask copyright lawyers who won Campbell, and most will answer, without hesitation, “2 Live Crew.”  They are correct … but only to a point.  The Court did hold that 2 Live Crew’s song was a transformative parody; however, the Court remanded for further proceedings on two of the four statutory factors:  specifically, to determine whether 2 Live Crew borrowed too much of the bass riff from Orbison’s original (the third factor), and to evaluate the impact that 2 Live Crew’s song would have on the derivative market for authorized, non-parody rap versions of Orbison’s original (the fourth factor).  This sometimes-forgotten fact illustrates how Campbell’s strengths (a nuanced balancing of the interests of plaintiff, defendant and society, with the goal of furthering copyright’s purposes) are also its weaknesses (a time consuming and frustrating endeavor that leads to inconsistent decisions and unpredictable results).  Close cases present opportunities for intense debate among fair use scholars and practitioners.  Reasonable lawyers can (and often do) disagree.

The Application of Campbell:  Square Peg, Round Hole?  It sometimes has seemed to me that, in the wake of Campbell, some courts and litigants believed that a creative work that borrowed protectable elements from another creative work could be transformative only if it was a parody, and only if it was making a direct commentary on the “victim work.”  And not just any commentary:  commentary on the naiveté of the original, precisely the type of commentary the Supreme Court found in Campbell.  This is not consistent with Souter’s nuanced opinion.  Souter never said that the road to fair use was so narrow.  He never said commentary was required.  The anemic approach to “transformativeness” in cases where an existing creative work is used to create a new creative work has always made me scratch my head.  Certainly in other (admittedly very different) contexts – such as Perfect 10 v. Amazon, Inc. (thumbnail images of copyright photos in search results) and Authors Guild v Google, Inc. (searchable excerpts of digitized copyrighted literary works) – courts were willing to embrace broader and more flexible concepts of transformative.  The peculiar (and I think unintended) impact of Campbell was that courts and litigants focused on parody as a potential path to fair use in cases involving artistic works and didn’t always explore with vigor and creativity other potential roads – despite Souter’s clear invitation for them to do so.

Seuss Sues.  Compare two cases, separated by 20 years, that inspired the wrath of the owners of the rights to Dr. Seuss’ universe of creations.  One case involved a book that told the sensational story of a real-world murder; the other involved a Broadway show that portrayed the aftermath of a tragic death that occurred on Mount Crumpit in Whoville.

In the more recent case (from 2017), Dr. Seuss Enterprises challenged as infringing a one-woman, adult-themed, expletive-laced, off-Broadway show in which an adult Cindy Lou Who from How the Grinch Stole Christmas narrates (naturally, in anapestic tetrameter, Dr. Seuss’ signature meter) the disintegration of the perfect Who-harmony witnessed at the end of Dr. Seuss’s holiday classic.  The show’s complicated plot can be summarized as follows (I’m leaving out some of the good bits):  a drunken encounter with the Grinch left Cindy Lou pregnant; the Grinch and Cindy Lou marry; hard times follow; Max (the Grinch’s dog) dies and is served as dinner; the Grinch gets mad (understandably); a physical altercation ensues, ending in the accidental death of the Grinch, and jail time for Cindy Lou.  The court had little trouble finding that the play was highly transformative and therefore a fair use:  “The Play’s coarseness and vulgarity lampoons [How the Grinch Stole Christmas] by highlighting the ridiculousness of the utopian society depicted in the original work.” The high level of transformativeness mitigated the fact that the play used a fair amount of copyrighted material from the original book (characters, plot) and made it unlikely that the play would interfere with markets for the exploitation of the original work or derivatives.  This case fits snugly within (on all fours with) Campbell (round peg – round hole).

In the earlier case (from 1997), Dr. Seuss Enterprises sued to enjoin publication of a book entitled The Cat NOT in the Hat! A Parody by Dr. Juice, which (as the title indicates) was claimed to be a parody of The Cat in the Hat.  The book told the story of the O.J. Simpson double murder trial, again in anapestic tetrameter (“One Knife, Two Knife; Red Knife, Dead Wife”), and its illustrations of the O.J. Simpson character bore a stylistic and sartorial similarity to Dr. Seuss’ Cat in the Hat character (down to the striped stovepipe hat).  After holding that the visual depiction of the O.J. Simpson character infringed upon Seuss’s copyright, the court flatly rejected the defendants’ fair use defense.  The defendants proffered the following explanation for the author’s decision to borrow elements from The Cat in the Hat:

The Parody's author felt that, by evoking the world of The Cat in the Hat, he could:  (1) comment on the mix of frivolousness and moral gravity that characterized the culture's reaction to the events surrounding the Brown/Goldman murders, (2) parody the mix of whimsy and moral dilemma created by Seuss works such as The Cat in the Hat in a way that implied that the work was too limited to conceive the possibility of a real trickster “cat” who creates mayhem along with his friends Thing 1 and Thing 2, and then magically cleans it up at the end, leaving a moral dilemma in his wake.

Get it?  I’m not sure I do.  Nor did the court.  Ultimately, the Ninth Circuit agreed with the lower court that the defendants’ proffered fair use defense was “pure shtick” and that their attempt to characterize their work as commenting upon the original work was “completely unconvincing.” (Ouch.)

Of course, there are important differences between these cases.  The play’s more easily discerned commentary on How the Grinch Stole Christmas presents a stronger case for fair use.  Where commentary exists, fair use is easier to find.  The Cat NOT in the Hat presents a harder case.  The defendants struggled mighty hard to convince the court (and perhaps themselves) that commentary was present … in other words, to try to squeeze their case into the Campbell mold (square peg - round hole).  Which raises the question:  when that road led to a dead end, were there others that the defendants could have taken that might have made a difference?  Perhaps the law, as it existed in 1997 (only three years after Campbell), didn’t reveal an obvious alternative path.  But maybe things have changed (or are changing) 20 years later?

Richard Prince to the Rescue?  If the fair use landscape is changing, we have the appropriations artist Richard Prince to thank (at least in part).  His works have been the subject of at least two lawsuits in New York.  The first, Cariou v. Prince, involved a series of collages and paintings in which Prince had incorporated photographs of Rastafarian men taken by French artist Patrick Cariou into a series of collages and paintings.  (Follow this link to see the works in question.)  The district court had granted summary judgment to Cariou, rejecting Prince’s fair use defense.  As a remedy, the district court had ordered Prince to deliver to Cariou the infringing works, for Cariou to destroy, sell, or otherwise dispose of, as he saw fit.  Prince’s paintings typically sell for six and sometimes seven figures, making this remedy no small thing!

In its decision, the district court had held that, in order to qualify for fair use, Prince’s work would have needed “in some way [to] comment on, relate to the historical context of, or critically refer back to” Cariou’s works.  On appeal, the Second Circuit reversed and clearly and emphatically rejected the notion that direct commentary on the original work is required under the first statutory fair use factor.  In the court’s words:

The law imposes no requirement that a work comment on the original or its author in order to be considered transformative, and a secondary work may constitute a fair use even if it serves some purpose other than those (criticism, comment, news reporting, teaching, scholarship, and research) identified in the preamble to the statute.  Instead, as the Supreme Court as well as decisions from our court have emphasized, to qualify as a fair use, a new work generally must alter the original with ‘‘new expression, meaning, or message.”  (Citations omitted.)

Next, the Second Circuit found, as a matter of law, that the manner in which Cariou’s photos had been used in 25 out of 30 of the challenged works constituted fair use because Prince’s works have “a different character, give Cariou’s photographs a new expression, and employ new aesthetics with creative and communicative results distinct from Cariou’s.”  The court dissected the ways in which Prince used Carious’ photographs, focusing on the distinct “aesthetics” and “communicative results” between the litigants’ respective works.  With respect to “new aesthetics,” the court contrasted Cariou’s serene, deliberately composed, small, black and white photos with Prince’s crude, jarring, hectic, provocative, large, colorful collages.  With respect to distinct “communicative results,” the court described Cariou’s as classical portraiture that strongly portrayed subjects as individuals; by contrast, the court stated, Prince’s series highlights equality of sexes, the “three relationships of the world” (male-female, female-female and male-male) and a contemporary take on music.

Critics of the decision – including the Seventh Circuit – argue that it is difficult to see why the “transformations” Prince made to Cariou’s photos qualify as fair use rather than derivative uses.  They argue that the court does little more than point out obvious aesthetic differences between the two works.  They emphasize that there is no direct commentary on Cariou’s works and that therefore the justification for using Cariou’s specific photographs as opposed to those of countless other photographers in nebulous, at best.  While I don’t dispute that the Second Circuit’s analysis in Cariou is a little sparing, I think the court’s decision is correct.  You can break down the Second Circuit’s reasoning as follows:

• First, the court determined that the nature and purpose of Prince’s use of Cariou’s photos was transformative (factor 1) in this sense:  Prince used Cariou’s photos as building blocks to construct new creative edifices – or as musical notes to compose new songs – that expressed artistic messages that were very different from those expressed by Cariou’s original photos.  Because Prince did not comment on Cariou’s works, it is not necessarily the type of “song sung alongside another” that meets the limited definition of “parody” under Campbell; instead, it is a different song, with different aesthetics, that conveys something different from the original.  But this type of use is transformative.
• Second, because Prince’s and Cariou’s works convey very different messages (factor 1), and because they have very different aesthetic qualities, the likelihood of market harm (factor 4) is low, and the fact that (at least in some of Prince’s works) large amount of Cariou’s photos were used (factor 2) is less important than it might otherwise be.  Again – there is an inverse relationship between factor 1 and factors 3 and 4.

The Andy Warhol “Rule.”  The approach taken by the Second Circuit in Cariou is not as controversial as critics would have you believe.  And it is not without precedent.  To prove this, look no further than the oeuvre of Andy Warhol.  In fair use cases (including in Cariou) and scholarly commentary, Warhol’s works are sometimes cited, with little analysis, as clear and obvious cases of fair use.  (I refer to this (tongue-in-cheek) as the “Andy Warhol Rule”:  meaning that Warhol’s use of third party copyrights was never anything but fair.)  However, you can only embrace the “Andy Warhol Rule” wholeheartedly if you have a flexible and broad view of fair use – consistent with the approach taken by the Second Circuit in Cariou.  Take Warhol’s multiple works featuring Marilyn Monroe, including Gold Marilyn Monroe, Marilyn Diptych, and Four Marilyns.  Each of these works makes prominent use of the same photograph:  a 1953 publicity still for the movie Niagara shot by Eugene Korman.  Almost certainly, Korman’s photo was used without permission from the copyright owner (either Korman or the studio).  (Let’s assume that all formalities of the then-effective 1909 Copyright Act had been observed and that the photograph was not in the public domain.)  Was Warhol’s use a fair one?  Warhol’s portraits of Monroe have been interpreted in various ways – including as commentary on death, on the cult of celebrity, on the relationship between celebrity and consumer culture, and on the extreme, and grisly consequences of Marilyn’s particular celebrity.  However, it would be difficult (I believe) to make a credible argument that Warhol was commenting directly and specifically on Korman’s photograph.  Instead, Warhol used Korman’s photograph as a springboard to make a broader commentary.  The photo constituted notes, certainly crucial notes, from which Warhol constructed an entirely new song, with “new aesthetics” and “creative and communicative results” were distinct from those of original photograph.  This is what the Second Circuit meant in Cariou.  It may not be the type of “song sung alongside another” that Souter envisioned in Campbell; yet, it is a new song that provides precisely the type of value that copyright law is intended to promote.

Recalibrating Balancing the Factors.  A perfect approach to fair use would calibrate things perfectly to further the purposes of copyright.  We would make the author’s “monopoly” rights expansive enough to incentivize people to create and share works (the copyright carrot) but not so expansive to enable the same people to weaponize copyright in a way that robs the world of society-benefiting works made by others.  While courts often give lips service to Campbell’s instruction that “all factors are to be explored, and the results weighed together, in light of the purposes of copyright,” it is not always clear to me that courts actually do so as they work their way through the statutory factors.  It would be much better if courts and counselors expressly considered, as part of their analysis, which harm was greater:  (1) the harm to society if the work in question were to be suppressed, or (2) the harm to the proper functioning of the copyright “carrot” system of incentives if the work in question is permitted.

We Communicate Differently in 2019.  When considering the potential harm to society posed by suppression of a work as “unfair,” we should recognize that the act of creating memes, and the use of memes by the creators and others who share later them, often serves a valuable communicative purpose.  Smartphones, apps and social media have changed forever the way we share and comment on personal news and current events, movies, Netflix shows, the Kardashians, on so much more.  Not just with words, but with pictures, video clips and audio.  Why type a word, when you can use an emoji?  Why write a full sentence, when you can send a meme?  Why post a plain photo when you can manipulate it with filters, stickers and other do-dads to convey your mood in that moment?  Sometimes this sharing involves the unauthorized use of copyrighted works.  Here’s the question:  can’t this sharing often be fairly characterized as “criticism, comment, and news reporting” by the masses – three of the favored uses in Section 107’s preamble – even when no direct commentary on the appropriated work can be discerned?

Back to Vanjie.  Now … back to the Bart Simpson Vanjie clip.  If Fox were to assert a claim for copyright infringement, what is the likelihood that a fair use defense would succeed?

There are obvious parallels at play:

• Testing Boundaries:  In the clip from The Simpsons, Bart (as usual) engages in mischief that tests the boundaries of acceptable behavior, a portrayal that is reinforced by the very words he speaks into the megaphones (“TESTING!”).  Drag Race (and the art of drag itself) tests the boundaries of gender identity (and so much more).  And, by seizing control of the narrative of her exit, Mateo likewise tests the boundaries of winning and losing, of success and failure, of pride and shame.  The cry of her name echoes the classic gay movie La Cage Aux Folles (“I am what I am”) and even Popeye the Sailor Man (“I yam what I am”).  Her message is clear:  if you don’t like me:  screw you, buddy!
• Magnification:  In the original, Bart’s repetitive iterations of rebellion (“TESTING!) are magnified by the megaphones.  Mateo’s proud declaration of identity (“Vanjie!”) is amplified by her own repetitions and then, even more so, by the countless memes that echo and the recontextualize her words (and her exit) and thereby amplify them.
• Shockwaves:  Bart’s “TESTING!” message sends shockwaves across Springfield with destructive force that (in cartoon fashion) is made visually literal.  Mateo’s exit gripped the attention of many fans – including, and especially, numerous meme creators – and can legitimately be characterized as creating metaphorical cultural shockwaves – shockwaves so big, that they earned her an invitation to return to the show the following season.

Is the meme creator commenting on The Simpsons clip?  If we are being honest, we have to admit that she isn’t – at least not in the direct way that 2 Live Crew commented on the naïveté of Orbison’s song.  It is more accurate to say that she (like Warhol did in his Marilyns) uses The Simpsons clip as a springboard to comment on other things:  specifically, on Mateo’s Drag Race exit and the reaction many had to it, and, more generally, on rebellion, perseverance, pride, and even drag itself.  She uses the clip as a musical note to composes a new melody (just as Prince uses Cariou’s photos as building blocks to construct new works of art).  By layering the Drag Race audio over The Simpsons clip, she teases out the parallels between the two, inviting us to see something new in clip – something that the original creators (obviously) could not possibly have envisioned.  A “song sung on top of another,” if you will.

Moreover, the Bart Simpson/Vanjie meme needs to be considered in the context of all the other Vanjie memes.  The meme creators were participating in a multi-person, multi-channel, multi-media conversation about something that, for whatever reason, captured the fascination of (at least a segment) of society.  Each adds to the conversation, with one meme begetting another.  The messages are carried on – and so on, and so on – by the amplification of digital media.  (Similar to the amplification that Bart achieved when he lined up the megaphones.)  It becomes a choir of “songs sung alongside others,” each relating to, riffing off, and amplifying the others.

The cumulative impact of this communication is hugely important, and threatening to suppress it through copyright enforcement hurts society.  Copyright owners can reasonably argue that allowing meme creators to use their property, without permission, interferes with the legitimate market for licensed uses.  However, the theoretical impact on that derivative market has to be weighed against (1) the meme creators’ transformative use of the owners’ content as part of massive, collective conversations about newsworthy topics (factor 1), (2) the relatively small amount of copyrighted material used in many instances (factor 3), and (3) the slight economic value of any micropayment that the copyright owner could reasonably expect from these uses (factor 4).  It is also important to consider the impact on speech that would follow from requiring meme creators to seek permission.  The value of a meme on a newsworthy topic – like those that were launched after House Speaker Nancy Peloisi condescendingly “applauded” the President – is ephemeral.  A delay of hours, let alone the weeks it often takes to hunt down and negotiate clearance with a rights owner, often will render the proposed communication valueless.  Moreover, there is a real danger that some copyright owners will refuse licenses in circumstances where they don’t like the meme creator’s message.  And, of course, it strains credulity to argue that allowing these types of uses to flourish will serve as a disincentive for future authors to create.  I promise you, you will never see this in a tweet from Stephen King:

After more than 60 novels, 200 short stories, 280 writing credits on movies and TV, and too many articles to count, I’m calling it quits.  The Miss Vanjie/Shining meme and all the others that have stolen my words are killing my joy.  It’s just not worth it any more.  Carrie was wrong:  Everyone is bad, Mama! Ever meme is a sin!  #CallingItQuits.

Ch-Ch-Ch-Changes.  Even after it was codified in Section 107, Congress intended that fair use would continue to develop, case by case, over time.  Flexibility is built into its DNA, empowering each generation to decide where to draw the line between fair and unfair.  It won’t be too long before millennials take the helm, the first generation to grow up in an era where anyone with a laptop, a camera, and internet access can produce content quickly and share it with the world, at little or no cost.  This generation has always had virtually unlimited access to copyrighted works owned by others and an unprecedented ability to “rip, mix and burn” with impunity.  It is naïve to think that they won’t view things differently than the generations that preceded them.  You don’t have to be a sage to predict that they will move the line so that most non-commercial, communicative uses of copyrighted content in short (“snackable”) messages (such as memes) falls within fair use.  And let’s face it:  the line has to move.  If it doesn’t, that means virtually every person on the planet participating in social media, text and other digital conversations is guilty of copyright infringement at one time or another.  When the law categorizes the majority of the population as scofflaws and scoundrels, that is pretty compelling evidence that it is time for change.  Turn and face the change!