As a fandom-on-my-sleeve nerd whose first creative products were fan-art and fanfiction, I very nearly danced with joy when I read Cohen's argument that creativity can only be understood as a feedback process situated in existing culture. "Finally!" I thought. "Someone who understands!"
Once the initial euphoria wore off, however, an unsettling and altogether foreign thought began to take root in my mind. Here was a narrative of creativity which I wholeheartedly endorsed, and encountered on a regular basis during my Internet equivalent of morning constitutionals. There is a vibrant world of discourse and creation entirely unbound by the shackles of intellectual property, which seems to revel in its independence. So, in the end, do we actually need to change the system?
Yes, I know - I, of all people, should be the last person to posit such a thought. But in the heat of academic debate, it is easy to forget that much of online culture - specifically the language of memes – exists by common consensus outside the reach of copyright. Moreover, it affords no right (or even common courtesy) of attribution. Grounded in a faulty notion of creativity or not, if the existing regime allows for this kind of creative flourishing to have its own separate realm, is it really such a bad system?
Visual memes (also known as image macros) are the de facto mode of expression for much of internet humor. As the lingua franca for many popular corners of the internet, visual memes possess a grammar all their own. When combined with one another, two semantically-loaded images can encapsulate an entire conversation in only a few thousand pixels. (See, e.g., the "Milhouse is not a meme" meme, left.) Although the focal point of the image is sometimes itself copyrighted, in many cases the semantic content of the meme as a whole is so unrelated to the copyrighted material that it bears absolutely no weight on its meaning.
While some theorists classify these uses of image macros as a kind of super-transformative fair use, in reality I believe they are closer in nature to Cohen’s “mass culture,” albeit within a limited context (i.e. the particular corner of the internet where it is being used). While the image may once have had a connection to a copyrighted work, that connection is often so attenuated as to be unrelated to the content of the image at hand. (See, e.g., the "Joseph Ducreux" image macro, to the right.)
Many image macros lack even this threadbare connection to traditional intellectual property rights, and instead are valued for the burden they impose on the user of deciphering their genealogy; what does each layer reference, and how does that visual grammar construct a story? (See, e.g., the "Bayeux Tapestry" meme, left).
My question is this: do we really need to revise our understanding of creativity to include this kind of creation, if we’re doing so with an eye toward revising the intellectual property system? Creators – or, rather, “meme authors” - operate with no expectation of credit, let alone compensation. Maybe in constructing policy, we should embrace the distinctions which Cohen dismisses as counterproductive – those of “economic” and “expressive” creators.
This admittedly presumes the value of a professional creative class. That’s an assumption I’m willing to make (though I flatly reject the strong-IP-rights argument that often dovetails with it). While the normative judgments about mimetic creation as “derivative” and of lesser value will undoubtedly shift over time, I’m not sure that their legal status needs changing – except, perhaps, for a generally overdue strengthening of fair use doctrine.
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