The Legal Netherworld of Meme Accounts
Copyright law hasn't yet caught up with social media.
By Jane C. Hu
Photo illustration by Natalie Matthews-Ramo/Slate. Photos by pdtnc/iStock/Getty Images Plus and zsv3207/iStock/Getty Images Plus.
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When Betches Love This launched in 2011, it was a WordPress blog listing all the things "betches" love, from high heels to the Hamptons. Now, Betches covers primarily celebrity news and wellness, and like most sites, it draws in readers from social media. Its Instagram account, which has 6.6 million followers, typically posts two or three new photos a day. But rather than posting the typical polished entertainment media 'gram fodder like professional celebrity photos and exclusive videos, it shares a mishmash of headlines along with screenshots of other people's tweets and comics.
Other popular media sites like BuzzFeed and Upworthy adopted the same format on their Instagram accounts, showing just how mainstream reposting on the platform has become. There are also countless accounts dedicated only to meme reposting. Some feature jokes, while others focus on social justice issues, the Bachelor franchise, or even a particular dog breed. The most popular accounts, like @Betches, have millions of followers, but just as many have just a few hundred or thousand and are run by young people. In late July, Instagram shut down roughly 30 several popular repost accounts—including @uniquevines, which had more than 8 million followers, and @autist, a page run by an 18-year-old who told Fox 5 San Diego he'd made $30,000 from the page, which he planned to use for college tuition. Purged account creators were upset. And now, as the Atlantic reports, the platform wants to win back their trust by hiring an official point person for memers.
Memes and reposting content have always been a part of social media, but Instagram's move to explicitly support accounts dedicated to this is unprecedented. Tumblr, for instance, was built on reposting others' content and adding your take, and when the site removed several popular accounts in 2015 for copyright infringement and illegal content, users were angry. But unlike Instagram, it did not take steps to support the site's repost culture or quell major users' worries and confusion about how and why accounts are removed. It appears that Instagram is moving to embrace creators of repost accounts; Lila King, the head of news and publishing partnerships, even told the Atlantic that "curation is a kind of creation," suggesting a shift in internet norms around accounts dedicated to posting other people's content.
Whether that holds up under copyright law is up for debate. "The answer to every legal question is that it depends," says Ruth Carter, a copyright and internet attorney. The specifics of each situation matter, and the law is still murky in many places. So as an example, consider the Instagram account @fuckjerry. (You might remember that earlier this year it was at the center of a movement, called Fuck Fuck Jerry, launched by comedians tired of the account's joke theft.) The account posts mostly screenshots of other people's tweets, usually with a one-liner or quick response to the content. Typically, the original poster's Instagram handle is included, but not always. One user sued Fuck Jerry for copyright infringement, saying they weren't properly credited.
Technically, tweets can be copyrighted, says Mitch Stoltz, senior staff attorney at the Electronic Frontier Foundation, but not necessarily all tweets. "Copyright requires some minimum amount of creativity," he says. "If I said something like, 'Happy birthday,' or something that's common and not creative, anyone can copy it and you have no legal rights. But if it was somewhat creative, you could, in theory, sue them."
OK, so let's say that any tweet Fuck Jerry thinks is interesting enough to repost is probably creative enough to claim copyright. So is the repost infringement? Not necessarily, says Carter.
Additional comment added by the reposter could qualify as fair use, meaning the reposter hasn't violated copyright laws because they're adding something to the conversation, but what that commentary says matters, too. "You may not have to add much to qualify, but I'm not sure if posting something like 'This is funny' would be enough to get you there."
What you add to qualify as fair use appears to be pretty open-ended. For example, in one contentious case, an artist named Richard Prince printed out screenshots of Instagram posts onto canvases, then sold them for hundreds of thousands of dollars. One of those canvases came from an image by photographer Donald Graham, who then sued Prince for copyright infringement. Prince claimed his printout of Graham's photo was fair use because the screenshot included user comments, likes, and elements that "have become iconic elements of the modern internet." The judge ruled that Prince's "art" wasn't transformative enough to qualify as fair use, but the case is ongoing.* (In response, artists made copies of a canvas Prince sold for $90,000 and put them up for sale for $90 in an effort to undercut his market.) By using similar claims to artistry, one could, in theory, claim that reposting someone else's work or curating a collection of other people's work is fair use of copyrighted materials.
Each social media copyright infringement case has so many elements to consider, it's hard to guess how any one case will turn out. "The only way to know for certain is being willing to duke it out in court," says Carter. But that takes time, money, and a lot of motivation, so it's likely that individuals whose posts are reproduced on these meme accounts simply don't care enough to sue, even if they may have a legitimate copyright infringement claim.
At some point, copyright law will need to shift to accommodate the new ways in which we're sharing words, images, and videos online. Our current laws are built around the Copyright Act of 1976, which went into effect in 1978. "When the law was written, we were dealing with paper books and cameras with film," says Carter. "We've come a long way since then." There have been updates to that, like the Digital Millennium Copyright Act of 1998, which made it illegal to copy media and exempted internet service providers from liability, but that, too, was implemented long before reposts were popular online. "The law has always lagged behind technology, so we have to try to figure out how the old rules apply to new tech."
Instagram officials might have some hand in shaping what's permissible on the platform.
One proposed solution was put forth in Congress earlier this year. The Copyright Alternative in Small-Claims Enforcement Act, known as the CASE Act, proposes that the U.S. Copyright Office oversee what's essentially a small-claims court for copyright infringement cases with relaxed standards for raising a suit and lower fines for violators. While this sounds like it'd be a good deal for individuals who might not otherwise have the means to sue for their rights, there are potential downsides. Stoltz points out that the Copyright Office doesn't have the same duty as a court to be impartial. "[The copyright office] considers copyright owners to be their 'customers,' so it's worrisome because there's this built-in bias to this quasi-court running in the Copyright Office," he says.
A lower barrier to entry for suits might also encourage copyright trolls to file frivolous claims. "Because the requirements to bring a case are somewhat lower, it would probably be easier and cheaper to bring dozens of cases against ordinary internet users and get them to settle for a few thousand dollars," says Stoltz, "so the financial incentives for copyright trolling would be multiplied." It seems unlikely that we'll have to grapple with these things, though. The act, introduced to the House in May by Reps. Hakeen Jeffries and Doug Collins, has failed before. The CASE Act of 2017 never moved forward, and a similar 2016 act never made it out of subcommittee.
Whether or not the CASE Act passes, we'll need judges and politicians who actually understand social media to create and enforce laws. The subtleties of reposting matter but might not be clear to someone who doesn't regularly use Instagram or Twitter. For instance, while Twitter has a built-in feature allowing for retweets, Instagram has no equivalent—you have to download a third-party app to repost for you, or screenshot the original. My gut says the latter could qualify as a case of copyright infringement more than the former. Similarly, there are layers to how media makes its way around the internet and how we cite it. In a 2018 case, a judge found several news sites, including Breitbart, Yahoo, Time, and Vox, guilty of copyright infringement because their news stories embedded a tweet that included a copyrighted photo of Tom Brady stolen from plaintiff Justin Goldman's Snapchat. The photo went viral and the embedded tweet was from a third party, but the ruling determined that news sites are still liable for pointing to illegally displayed copyrighted material. That decision has been criticized as complicating the legality of linking to social media.
Until then, social norms will likely dictate how we treat reposts. By taking a proactive step toward talking with creators, Instagram officials might have some hand in shaping what's permissible on the platform and norms for best practices. For instance, after the backlash to the account, it appears that Fuck Jerry now seeks consent from original posters before sharing and always includes the person's username. That seems like the least any meme or repost account can do, as a matter of basic courtesy.
The power dynamics of social media will drive repost norms as well. Most users likely don't have big plans to copyright their tweets or TikToks for any reason, and many find a thrill in going viral, especially if there's credit involved. And at the very least, in the age of cancel culture, it's risky to go after any beloved account with millions of followers. Do you really want to be the person who sues everyone's favorite reposter? As Stoltz says: "It wouldn't earn you much money and might not do a lot to stop them anyway."
Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.
Correction, Aug. 11, 2019: This article originally misstated that artist Richard Prince won the copyright lawsuit brought against him. The case is ongoing.
Instagram Internet Culture Memes Social Media