Memes on Memes and the New Creativity

Dating back centuries to its earliest enactments, copyright law has longstanding, built-in notions about creativity, commercialization, and distribution of creative works that memes turn on their head in critical ways. Copyright law is constructed on many assumptions flowing from its base premise that copyright's exclusive rights to authors can encourage them to create and distribute socially valuable creative works by preventing third-party copying of these works. 2 Central among them are the assumptions that people can generally create desirable works without much copying, that authors want their works not to be copied without their permission because otherwise they will be harmed and disincentivized to create, and that authors can make money directly off their creative works by exercising their exclusive rights. Additionally, copyright law dictates that expression should be protected and ideas should be freely available for reuse, presuming that idea and expression are distinct. The law also is predicated on the view that authors will have a long period over which to recoup value for their works, and these works can be valuable for a very long time. Copyright law also supposes that authors can and should decide which third parties get to use their works and when and whether to enforce their rights against third parties who have copied. Finally, copyright law assumes that authors can easily be identified 1 See How It Started vs. How It's Going, KNOW YOUR MEME, https:// knowyourmeme.com/memes/how-it-started-vs-how-its-going [https://perma.cc/LM76-YV7K] (explaining the format of the "How It Started vs. How It's Going" type of meme). 2 See infra Part I.

and are central figures who deserve to get the copyright reward for a work.

Yet in the context of memes spread over the internet, these assumptions break down in significant ways. For one thing, not only do meme creators typically want to be copied as much as possible, they also usually want their works to be transformed by third parties in untold ways. The copying of memes tends to create significant value for, rather than detract from, the underlying works on which they are based. Memes also shatter copyright's assumption that creative works are directly monetizable, as memes are usually indirectly monetizable. The world of memes transcends the line between commercial and noncommercial activity, while copyright law treats these realms as distinct. Additionally, memes expose that expression in one context can become idea in another context, breaking down copyright law's distinct categories of unprotectable idea and protectable expression. Also characteristic of memes is an exponential scale and pace of copying, which concomitantly expedites the staleness of existing works and the pace of creation of new works. Moreover, the selective enforcement that copyright law assumes is turned on its head by the broad scale of permitted or tolerated copying, as almost all can copy a work and only a very select few are denied permission to use the underlying work. Finally, whereas copyright law assumes the centrality of the author, in meme culture the work itself takes on a primary role over the author, who often cannot even be easily identified. These features of memes reflect a new creativity that has progressed far beyond the creativity analyzed at the beginning of the twenty-first century for user-generated content.

Although memes are often designed to be eye-catching and funny, they are serious and important in today's world as one of the most frequently created and shared categories of creative works on the internet, especially on social media. 3 As such, the fact that they upend so many of copyright law's central assumptions of creativity, commercialization, and distribution is worthy of attention. If meme culture is worth safeguarding, attempts to enforce copyright law as is with regard to memes are inappropriate given the substantial disconnect between memes and copyright law's assumptions. Therefore, cop-yright law and theory must either be left to the wayside or refashioned to account for memes.

But the problem goes well beyond memes. Indeed, memes herald a much larger shift that is underway in contemporary creativity across a range of areas, including music, dance, and visual art. As we show, the problems that memes present are of increasing and widespread significance to contemporary creators. This emerging creativity shares multiple characteristics of memes and similarly defies copyright's core assumptions. By mapping out the dramatic disconnect between memes-a paradigm of contemporary creativity-and copyright law and theory, we can reflect back on the increasing outdatedness of copyright's core. We conclude by observing that there now seems to be two paradigms of creativity-the traditional model and what we call the "new creativity"-that can both remain extant, vibrant, and distinct, even though they are interconnected and influence one another.

Copyright law better fits with the traditional model but is a misfit to the new creativity.

This Article explores these issues, organizing itself around a series of memes we created that themselves reflect on memes. 4 Part I sets forth the basic tenets of copyright law on creativity, commercialization, and distribution. Part II offers an overview of memes, presents an argument for their significance, and outlines their current treatment under copyright law. In Part III, we show how memes pose a fundamental challenge to copyright law and theory by violating the central copyright principles of creativity, commercialization, and distribution. Having established the disconnect between copyright law and memes, Part IV considers whether and how copyright law could be modified to account for memes. In Part V, we argue that memes are far from a sui generis exception to the premises of copyright law. Instead, memes are a prototype of a new mode of creativity that is emerging in our contemporary digital era, as can be seen across a range of works. Therefore, the concern with memes signals a much broader problem in copyright law and theory. able purposes. 19 In this way, a utilitarian theory of copyright law rests on the premise that the benefit to society of creators crafting valuable works in exchange for legal incentives offsets the social welfare costs. 20 In recent years, scholars have questioned whether the copyright incentive is necessary in the first instance to motivate people to create expressive works. Some scholars have explored the vibrant expressive activity occurring outside the realm of copyright, such as in cuisine, stand-up comedy, and magic. 21 Others argue that in certain markets, copyright law is unnecessary because the social norm of authenticity incentivizes creativity. 22 Some scholars hypothesize that people would create works absent copyright incentives, owing to intrinsic motivation to do so. 23 Yet others think this skepticism is wrong or incomplete, arguing that copyright's incentive does encourage both creation and distribution of works. 24 Indeed, rightly or wrongly, copyright's incentive theory remains front and center in copyright as currently implemented.

With this background, we now explore how traditional copyright theory and doctrine interrelate with the many assumptions copyright law makes about creativity, commercialization, and distribution.

Copyright law is premised on authors producing creative works without copying. Even though copyright law sometimes condones copying, in the main it is antagonistic to copying because of copyright's goals.

Two of copyright law's central requirements underscore the law's rejection of creativity through copying. Consider first copyright's originality requirement, which is a prerequisite for copyright protection. 26 The Supreme Court has held that work is original so long as it "was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity." 27 A work must merely evidence "intellectual production, . . . thought, and conception." 28 Originality does not necessarily require true novelty; a minimally creative work is protectable even if there is a nearly identical work, so long as the other work was not copied. 29 As Judge Learned Hand observed, "[I]f by some magic a man who had 25 Left Exit 12 Off Ramp, KNOW YOUR MEME, https://knowyourmeme.com/memes/ left-exit-12-off-ramp [https://perma.cc/PKW2-4MAK]. 26 17 U.S.C. § 102(a) ("Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression."). 27 Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991). 28 Id. at 362 (quoting Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 59-60 (1884)). 29 Id. at 345-46. never known it were to compose anew Keats's Ode on a Grecian Urn, he would be an 'author,' and, if he copyrighted it, others might not copy that poem, though they might of course copy Keats's." 30 The originality requirement as a threshold for copyright protection is thus premised on an author's independent creation of a work without copying. Now consider copyright law's rule for infringement. A defendant's acts can be condemned as infringing only if the defendant actually copied the plaintiff's copyrighted work in some capacity. 31 Hence, a defendant's independent creation is a full defense to an infringement claim. 32 That said, not all copying is ultimately forbidden. As the Ninth Circuit has explained, "To infringe, the defendant must . . . copy enough of the plaintiff's expression . . . to render the two works substantially similar." 33 Both copyright protection and infringement liability are accordingly grounded in the notion that copying is harmful, something to be avoided and condemned. One cannot garner copyright protection in the first place by creating a work that copies from a preexisting work, and one might be condemned to infringement liability if one has copied, particularly if one has copied too much.

Both of these crucial aspects of copyright law underpin its thinking about creativity: Copyright law seeks to and will encourage creativity, but only that which occurs without much copying, if any. That is, copyright law assumes that the socially valuable works it seeks to encourage should occur without copying from others and will not be considered infringing if they are not copied. 34 One might understand this as a financial matter: It makes little sense to provide copyright's incentives to someone who copies an existing work or to condemn a third party who has not actually copied from an existing work. 35 Otherwise, if copiers were granted the privileges of copyright, the copyright incentive would be blunted by allowing secondcomers to copy from and undercut the copyright incentive provided to the firstcomer. 36 This antipathy toward copying can also be understood morally: Copyists are culpable-such as for appropriating someone else's creative labor-and ought to be discouraged. 37 Yet copyright's reality is more complex. Copyright law sometimes condones copying, most notably with regard to fair uses of a work. 38 The fair use doctrine is thought to stimulate the production of creative works that do not undercut the value of the original copyrighted work too much. 39 It does so by enabling third parties to create culturally valuable works that must copy from the original work in some capacity in order to succeed, often transforming it. 40 As suggested by the statutory directive on fair use 41 and elaborated in case law, some prototypical cases include news reporting, critical reviews, and parodies. 42 Wendy Gordon has theorized that "fair use [has been used] to permit uncompensated transfers that are socially desirable but not capable of effectuation through the market." 43 Examples include parodies that might cast an unfavorable light on an original work or uses for which high transaction costs would discourage licensing arrangements with the copyright owner. 44 This particularized authorization of some copying coincides with scholarly recognition that copying can encourage creativity. For one thing, scholars appreciate that artists may create by building on others' work or learn from existing works to create new work. 45 More directly, scholars and courts recognize how important copying can be to creating important new works, whether it be contemporary art like Richard Prince's, Star Trek fan fiction, or a new software implementa-tion of the Java application program interface. 46 Moreover, as we have previously observed, in light of today's internet age, "as the entire archive of past creative works becomes more accessible, creators will have access to more past works to build on and copying will likely play an even more significant role in creativity." 47 Despite this scholarly recognition that fair use exists as one among several important statutory exceptions to copyright infringement, 48 the "exemption" framework implicitly makes default the assumption that creativity must be without copying. Copying sometimes can be condoned and important in copyright law, but it is the exception rather than the norm. 49

Copyright law's antipathy toward copying raises the question of why copying is not condoned as a general matter. Copyright law takes 46 See, e.g., Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183 (2021) (Java); Amy Adler 48 See 17 U.S.C. § § 107-122 (including, among others, reproductions by libraries and archives ( § 108), ephemeral recordings ( § 112), and noncommercial broadcasting ( § 118)). 49 Cf. Shyamkrishna Balganesh, The Obligatory Structure of Copyright Law: Unbundling the Wrong of Copying, 125 HARV. L. REV. 1664, 1666-74 (2012) (showing that "much of copyright's analytical work is done through its creation and maintenance of a 'duty not to copy'"). 50 Steven Crowder's "Change My Mind" Campus Sign, KNOW YOUR MEME, https:// knowyourmeme.com/memes/steven-crowders-change-my-mind-campus-sign [https:// perma.cc/N6WP-SPT3].

the position that copying someone's creative work is generally harmful, both economically and morally. For one thing, copying is thought to be economically harmful in that it undermines the incentive of creators to make valuable works. 51 Under this thinking, third parties' unauthorized copying undermines the original author's exclusive rights by allowing copiers to make the same work at a marginal cost by avoiding the costs of creation. 52 Moreover, copying others' work is condemned by some courts as lazy 53 and by some scholars as immoral. 54

If copyright is thought to serve as an incentive to create, it functions by awarding exclusive rights such that authors may directly profit off their creative works. That is, authors can invoke copyright to stop others from exercising any of copyright's exclusive rights, including reproducing, distributing, and publicly performing a work. 56 Authors can exercise these rights themselves, 57 thereby selling access to their works in various ways. Because these rights are exclusive, authors can typically sell their works at higher prices than they would be able to without them. 58 Again, copying may interfere with an author's profits from these exclusive rights, thereby inflicting economic (and moral) harms. By privatizing what would otherwise be a freely copyable public good through the operation of law, copyright makes protectable works monetizable.

Beyond creativity and copying, copyright law has further rules about what material is and is not protectable. In particular, copyright law extends protection only to the expression of ideas; ideas themselves remain in the public domain. 60 For example, the expression in a play about star-crossed lovers would be copyrightable, but the idea of star-crossed lovers would not. 61 As the Supreme Court has explained, ideas are excluded from the scope of copyright protection so that they can be left free for all to use as building blocks to create further expression. 62 Courts attribute this principle to protecting First Amendment values. 63 Courts and scholars find it hard to distinguish between idea and expression. 64 As Learned Hand influentially set up the analysis: Upon any work, . . . a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what [a work] is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the [author] could prevent the use of his 'ideas,' to which, apart from their expression, his property is never extended. 65 Judge Hand then concludes, "Nobody has ever been able to fix that boundary, and nobody ever can." 66 Even so, courts have established a doctrinal framework of abstraction and filtration to distinguish idea from expression. 67 Despite the difficulty of distinguishing between the two categories, copyright law understands the categories to be distinct: one protectable, the other not. 68 Star-crossed lovers are always an unprotectable idea, whereas the words in a play about star-crossed lovers are always expression and thus potentially protectable. 64 See, e.g., Nichols, 45 F.2d at 121 (developing a framework for determining infringement when no actual expression of the copyrighted work is taken and used in the allegedly infringing work); see also Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 304 (1996) ("[W]hile the idea/expression dichotomy makes sense in principle, it is notoriously malleable and indeterminate."). 65 Nichols, 45 F.2d at 121. 66 Id. 67 See id. at 121-23 (breaking down the structure and different elements of the defendant's allegedly infringing work (abstraction) to separate protectable expression from an unprotectable idea (filtration), and holding, based on only the unfiltered elements that were expression, that the defendant's motion picture did not infringe the plaintiff's play); see also Comput. Assocs. Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 706-10 (2d Cir. 1992) (using the abstraction-filtration framework to determine whether the nonliteral elements of two computer programs were substantially similar).

68 Even while explicitly recognizing the interconnection between expression and idea, copyright's merger doctrine nevertheless assumes a distinction. According to this doctrine, when there are only a very limited number of ways to express an idea, idea and expression are thought to have merged, rendering the expression just as uncopyrightable as the idea. See Morrissey v. Procter & Gamble Co., 379 F.2d 675, 678-79 (1st Cir. 1967). The expression in such cases is not protectable because were it otherwise, copyright law would effectively be providing protection to the idea. See id.

If a work meets the various protectability requirements just discussed, it is typically protected by copyright law for a long time: generally, an author's lifetime plus seventy years. 70 As a policy matter, duration is premised on the period of time over which an author can recoup value for their work. 71 As one of us has explained, Congress has repeatedly extended copyright duration, asserting that it was doing so to "account[] for increased average life expectancies for authors and for the longer commercial life of works," among other reasons. 72 In fact, this duration can be so long that technologies of dissemination and markets-such as the internet, social media, and video cassettes-can develop in a way unforeseen to authors a century or more ago when they first created their work. 73 their exclusive rights to third parties. 79 The law also permits copyright owners to enforce their rights by bringing an action for copyright infringement. 80 These two aspects of copyright law imply that copyright owners get to decide which, if any, third parties can use their works and when and whether to enforce their rights against third parties who have copied their works without permission. Indeed, courts have espoused the view that this is the copyright holder's ultimate choice. For instance, the Second Circuit has stated that copyright law "must respect [the copyright holder's] creative and economic choice" to not exploit an aspect of their exclusive rights. 81 The copyright owner can grant a select few licenses that they deem to be efficient. For example, an author of an English-language book may grant a license to a particular translator to create a Frenchlanguage version of the book. 82 This is understood to be part and parcel of the copyright incentive in the first instance, as a way to control who else, if anyone, can make works that might interfere with or enhance the copyright holder's market. 83 Moreover, even without granting third parties permission to use a work, copyright owners may tolerate infringing uses. 84 They might do so, as Tim Wu puts it, due to "laziness or enforcement costs, a desire to create goodwill, or a calculation that the infringement creates an economic complement to the copyrighted work."

A final assumption on which copyright law is premised is that the author is central and can generally readily be identified to get their copyright reward. Copyright law situates initial protection in a work's author, be the work a single-authored work, a joint work, or a work made for hire. 87 This grant follows from the constitutional grant of power to Congress to confer copyright protection on authors for their writings. 88 An abundance of critical scholarship attacks the assumption that the author ought to be the central figure in copyright law deserving of the reward, particularly when there are many others, including editors and audiences, who contribute to a work and its value. 89 Stewart Sterk goes further to underscore how rhetoric of the author's centrality to works has helped create and expand copyright rights, even beyond what is necessary to achieve copyright's goals. 90 Others accept the author's centrality and seek to explain what should qualify someone as an author. For example, Chris Buccafusco theorizes that "to be an author of a writing, one must intend to produce some mental effect in an audience," leading him to conclude that garden designers, computer programmers, and others might be authors. 91 Jane Ginsburg and Luke Budiardjo understand authorship to be the conjunction of devising a creative plan for a work and physically executing the work. 92 Right or wrong, the author is copyright law's central figure. With these assumptions explored, we now turn to discuss memes.

In this Part, we introduce the surprisingly elastic and imprecise definition of the term "meme," laying bare the centrality of copying to this category. We then consider the importance of memes by briefly exploring their critical role in contemporary creativity, expression, and political discourse.

A. Overview 94 "Meme" is a remarkably imprecise and elastic term. The scientist Richard Dawkins coined the word in his influential 1976 book, The Selfish Gene, to describe a "unit of cultural transmission" that replicates and stays alive by "leaping from brain to brain." 95 The term's origins stem from the conceptual analogy Dawkins drew between cultural and biological evolution; Dawkins chose the word to sound like "gene." 96 But Dawkins's neologism also had a second root that signaled a second conceptual pillar of his theory: the central role of copying. He chose the term "meme" to reference the Greek word "mimeme," meaning "imitation." 97 Since its invention, the term "meme" has mutated in meaning. Dawkins used the term broadly to include things that propagate, survive, and ultimately penetrate cultures, such as "catch-phrases, clothes 94 Is This a Pigeon?, KNOW YOUR MEME, https://knowyourmeme.com/memes/is-this-a-pigeon [https://perma.cc/8PBP-424X]. 95 RICHARD DAWKINS, THE SELFISH GENE 249 (Oxford U. Press, Inc. 2016) (1976). 96 Id. Note that there are widespread debates in the field of memetics about this genetic analogy, including questions it raises about the role of human agency in cultural memes. See LIMOR SHIFMAN, MEMES IN DIGITAL CULTURE 10-12 (2013). We return to this debate below in Section III.H, where we discuss the complexity of authorship in meme culture. 97 DAWKINS, supra note 95, at 249.

fashions, ways of making pots or of building arches," and even the idea of God. 98 Debates about the definition and nature of memes have entered multiple disciplines, including psychology, communications, linguistics, anthropology, and philosophy. 99 Scholars routinely note the word's imprecision. 100 The colloquial usage of the term has shifted in the digital era to become inextricably associated with the internet and digital life. 101 But even in this realm, the word is imprecise. In its broadest contemporary usage, "meme" applies to any viral sensation online, such as trending hashtags or viral videos, or even to viral offline behaviors that are spread by digital culture. Thus, innocuous (if sometimes nonsensical) fads, like the plank trend 102 or TikTok dances, 103 have been called "memes," as have real-world fashion trends that initially spread online, such as the alt-right fad of wearing Fred Perry shirts or the Boogaloo Boys' wearing of Hawaiian shirts. 104 The term has even penetrated the stock market, where the term "meme stock" refers to stocks such as GME (Gamestop) that see "sudden and dramatic surges thanks to social media hype" while at the same time being considered "merely a joke." 105 Indeed, some sources use the phrase "meme culture" as a synonym for internet culture more broadly. Other sources, however, reserve the word "meme" for a narrower subset of digital life: digital images that are created and recreated by continually "pasting captions onto other people's photos," 107 by mixing images together, or by referring, sometimes obliquely, to previous images. 108 Meme scholar Limor Shifman emphasizes the intertextual quality of such memes, defining them as "created with awareness of each other, and . . . circulated, imitated, and/or transformed via the Internet by many users." 109 Note the visual nature of memes in this narrower definition. Stacey Lantagne, for example, describes memes as mutating "visual images that have morphed beyond their origin to act as their own form of communicative shorthand." 110 Typically for digital memes of this sort, the visual image remains relatively constant, and users change its meaning through new text or juxtaposition with other images. 111 While we recognize the term's imprecision, our focus here is on this narrower subset of memes: viral visual images continually remixed by multiple users, juxtaposed with text, or mixed with other images, that ultimately become their own shorthand for meaning. 112 We consider this definition to be the most commonly used meaning of the term in popular discourse-at least for now. The reader will note that this Article's illustrations are all examples of this core meaning of the term.

Despite the term's elasticity, one common thread runs through all the various definitions, including ours: Memes are about copying, on a large and widespread scale. Dawkins's reference to "mimeme" or imitation has persisted at the concept's core. Whatever else a meme is, an image (or phenomenon) becomes a meme only if it is widely copied. 113 Thus, as we explore in Part III, the challenge memes pose to copyright law could not be starker or more fundamental: Copyright law at its core views unauthorized copying as a threat to creativity. Yet memes, a paradigm of contemporary creativity,foot_7 owe their very existence to limitless, unauthorized, viral copying. These fundamental differences lead to numerous disconnects between the use of memes and traditional copyright law, which we explore in Part III.

It may be tempting for academics to dismiss meme culture. 116 When you think of the prototypical meme user, you may picture a Gen-Z teenager in a Reddit chatroom making inconsequential, puerile jokes about pop culture. And unless you spend your life online, memes frequently seem impenetrable, their meaning dependent on multiple references to other memes and to (often trivial) shards of pop culture.foot_10 Worse, if you invest time trying to puzzle out a meme's meaning, by the time you "get it," it may already be old news, and so many new ones have sprung up that your time spent decoding may feel futile.

Despite this, we argue that legal scholars should take memes seriously. Whether viewed from the perspective of copyright law (the focus here), which values creativity, or First Amendment law, which prizes a robust marketplace of ideas and political discourse, memes matter. We view them as a paradigm of contemporary creativity and a powerful form of contemporary speech, often with significant political consequences. 118 We see memes as paradigmatic of contemporary cultural expression because of the fundamental role copying plays in their production (going back to the "mimeme" root of the word). As we have previously argued, while "creativity has always relied to some extent on copying, the role of copying has taken on much greater urgency in our contemporary digital culture." 119 Thus, scholar Limor Shifman writes that the "the meme concept encapsulates some of the most fundamental aspects of contemporary digital culture." 120 A second aspect of memes also makes them paradigmatic for us: They are primarily visual in nature. In most memes (but not all), an image stays constant as the shortcut for meaning, but users continually swap in new text. This reliance on the visual image also makes memes emblematic of a larger shift through which "the image has surpassed the word as the dominant mode of communication," as one of us has previously argued. 121 Indeed, Martin Gurri has observed of digital culture: "What is usually referred to as new media really means the triumph of the image over the printed word." 122 Moreover, memes matter because they are wildly popular and one of the most commonly created, shared, and consumed types of expression. As Fortune put it in 2016, "[f]or the first time ever, memes are more popular than Jesus," as "memes" became the most popular Google search, beating "Jesus"-the most popular search term since 118 2011. 123 Not only are they searched for, but they are created and shared constantly: Over one million meme posts were made by Instagram users daily in 2020. 124 As Kaitlyn Tiffany explains, "[m]emes and pop culture go hand-in-hand now. They don't sit in subforums and subreddits; they crop up in group chats and on your local diner's Instagram account." 125 We return to these themes in Part V, but for now we note that given the rising importance of copying to creativity, the move to an image culture, and the extraordinary popularity of memes, memes matter because in many ways they represent a paradigm case of a more general aspect of contemporary speech and creativity.

In this Section, we explore the numerous ways that memes contribute to society: principally newness, creation of common ground, participatory culture, and providing ways to attract the scarce commodity of attention in our current world. We consider not only the contributions memes make but also the dangers they pose to society.

As observed in Part I, the overarching goal of copyright is to stimulate new works and to "create and disseminate ideas." 127 Here we briefly explore various ways in which memes fulfill this goal. a. New Content 128

One thing memes do is contribute new content by copying. Though that sounds paradoxical, consider the meme above, which takes its image from a Dos Equis beer commercial featuring the pictured actor as "the most interesting man," in which he says, "I don't always drink beer, but when I do, I prefer Dos Equis." 129 The image was copied and memed by combining it with a similarly structured phrase to convey what the Know Your Meme reference website describes as a "highly charismatic and well-traveled gentleman with refined tastes in many things" might say. 130 In less than three years, one meme webpage collected more than 96,000 distinct submissions of this meme and one Facebook page garnered 243,000 likes for the meme. 131 The meme's copying and spread facilitated new content itself that was consumed widely. 128 The Most Interesting Man in the World, KNOW YOUR MEME, https:// knowyourmeme.com/memes/the-most-interesting-man-in-the-world [https://perma.cc/ D7E3-D3N2]. 129 Id. 130 Id. 131 Id.

Another way memes create new expression and meaning is by recontextualizing existing works. The meme above is an example. The painting, owned by the Louvre, is a self-portrait by the eighteenthcentury portraitist Joseph Ducreux. In its life as a meme, the image has become a template on which users superimpose "archaic reinterpretation[s]" of popular rap lyrics. 133 Although there are extensive variations, we include the image above because it is a version of the opening line to Roy Orbison's iconic song Oh, Pretty Woman-"Pretty woman, walking down the street"-the subject of the Supreme Court's seminal copyright decision in Campbell v. Acuff-Rose Music, Inc. 134 c. Combinations 135 Memes sometimes add new meaning to existing images by combining works to make a mashup that then becomes a new meme of its own with new meaning; the resulting combination might be called a "supermeme." For example, the reader may recognize the popular supermeme pictured above, which is a remix of two preexisting memes, one a still from a television episode of The Real Housewives of Beverly Hills, and the other, a "confused cat at dinner" meme. 136 A Twitter user combined these memes into a new image and shared it online, remarking "[t]hese photos together [are] making me lose it." 137 The combination of these two images became so wildly popular in 2019 that it became its own meme, Woman Yelling at a Cat, which has been frequently copied as a template for new expression. 138 The combined meme was even given a visual (fake) backstory of what happened to the woman and the cat. 139 135 Woman Yelling at a Cat, KNOW YOUR MEME, https://knowyourmeme.com/memes/ woman-yelling-at-a-cat [https://perma.cc/P6GY-6FMA]. 136 Id. 137 Id. 138 Id.; see also Is This a Pigeon?, supra note 94 (providing another example of a supermeme). 139 See Giedre Vaiciulaityte, Artist Gives the "Woman Yelling at a Cat" Meme a Deep Twist, BORED PANDA, https://www.boredpanda.com/woman-yelling-at-cat-comic-unfins [https://perma.cc/7DTE-8RYW] (featuring a four-part comic series giving backstory to the characters of the iconic meme).

Memes also help forge a common culture by giving individuals works through which they can connect with one another. Just as one might share an aspect of Cinderella to communicate something about evil stepmothers or princess fantasies, an individual can invoke a widely shared meme to communicate a certain point, as well as to signal that the speaker and the listener speak the same language. 141 In light of this aspect of memes, linguists James Willmore and Darryl Hocking call memes "fundamentally conversational in nature." 142 They explain that "the locus of this conversational capacity lies in the way that Internet memes employ the type of demotic creativity, including repetition, pattern reformulation, punning, morphological inventiveness, invented phrase, and figures of speech, that . . . are common to everyday conversational language." 143 Not only do memes contribute to common culture, but they also draw on it. As communications scholar Rebecca Ortiz observes, "[m]emes are only shareable when there's something about them that 140 Jack Sparrow Being Chased, IMGFLIP, https://imgflip.com/memegenerator/Jack-Sparrow-Being-Chased [https://perma.cc/6X6D-GNHC]. 141 Cf. Cohen, supra note 24, at 147-48 (analyzing how copyright law plays a significant role in producing as well as enabling access to a common culture, both directly and indirectly); Rebecca . . . a select group of people can understand."foot_14 A meme might include an image from a popular children's television show or use a catchphrase uttered by a politician, and to be successful, it helps to draw on common ground. By both drawing on and contributing to common culture, memes create what Ortiz describes as "an in-group connection." 145 As she elaborates, it might be "a group of billions" or more niche, but either way, memes can help people "connect with somebody through these shared meanings and cultural references" and "feel . . . special for understanding it." 146 Wilmore and Hocking further reflect that memes "facilitate a sense of communal belonging and ideological alignment; they are fun, spirited, and spontaneous; and they can also provoke wider sociopolitical dialogue." 147 3. Participatory Culture 148 Somewhat relatedly, meme culture is not top-down, with society being fed expressive works and passively consuming them. Anyone with a digital device and an internet connection can readily participate in making and sharing memes. Rebecca Ortiz elaborates:

Anybody can be a producer, and that's one key piece to this. Because they're not meant to be high production quality and because they're meant to be quickly thrown together in response to what's happening in the culture at that moment, it allows people to become these media producers very quickly and very easily without needing all the fancy knowledge or the fancy production quality. 149 Free online meme generators help users craft and adapt memes to share, which they can easily do on a myriad of social media platforms. 150 As one artist writes, memes "are the democratizing medium of our collective digital present." 151 Bernie Sanders Wearing Mittens Sitting in a Chair Meme 152

As just one example of the participatory culture fostered by meme creation and sharing, consider the meme Bernie Sanders Wearing Mittens Sitting in a Chair (shown above), widely spread and transformed following the 2021 presidential inauguration of Joe Biden. The image attracted attention in large part because Sanders's dress was less formal than that of others and was taken to convey that Sanders would rather not have been there. 153 The initial tweets of this image spread like wildfire 154 and in no time, others were placing 149 Zemler, supra note 144 (quoting Ortiz). 150 See David Nield, 6 Easy Ways to Make Your Own Memes, WIRED (May 30, 2021), https://www.wired.com/story/6-easy-ways-make-memes [https://perma.cc/QR3T-LHU2] (describing various online platforms which allow users to generate memes).

151 Alice Bucknell, What Memes Owe to Art History, ARTSY (May 30, 2017), https:// www.artsy.net/article/artsy-editorial-memes-owe-art-history [https://perma.cc/NW7X-M5L6] (arguing that memes, similar to 1960s performance art, "offer a highly accessible and interactive platform of production that is ripe for challenge and dissent, with disagreements and controversy only fueling the fire of a successful meme truly going viral").

152 Bernie Sanders Wearing Mittens Sitting in a Chair, KNOW YOUR MEME, https:// knowyourmeme.com/memes/bernie-sanders-wearing-mittens-sitting-in-a-chair [https:// perma.cc/9E2L-XTR5]. 153 See id. 154 Id. (explaining that, for example, one reporter's post about the photo was retweeted 46,000 times within twenty-four hours).

Memes are also particularly valuable in contemporary culture because they allow creators to draw attention to their ideas in a world in which attention is scarce and speech is cheap. As the internet has dramatically reduced the costs of producing and disseminating works, 157 we are now drowning in information. 158 The real barrier for creators is no longer what it costs to create and distribute work, but instead the problem of how to gain anyone's attention in a world of information overload. We posit that memes are perfect modes of expression for speakers in our attention-scarce world. 159 Immediately recognizable, funny, and attention-grabbing, memes can be consumed almost instantaneously by viewers suffering from shorter and shorter dibs-best-sanders-memes [https://perma.cc/QWF5-YPHT]; Bernie Sanders Wearing Mittens Sitting in a Chair -Skyscraper Lunch, KNOW YOUR MEME, https://knowyourmeme.com/ photos/1998018-bernie-sanders-wearing-mittens-sitting-in-a-chair [https://perma.cc/Y98U-BFVW]; Amit Paranjape (@aparanjape), TWITTER (Jan. 23, 2021, 2:31 AM), https:// twitter.com/aparanjape/status/1352881716273111041 [https://perma.cc/W8CW-AXDH].

156 Calvin Candie Meme Generator, IMGFLIP, https://imgflip.com/memegenerator/ 49576512/calvin-candie [https://perma.cc/CM7D-W483]; see also Calvin Candie, KNOW YOUR MEME, https://knowyourmeme.com/memes/calvin-candie [https://perma.cc/WW4A-ENYV].

157 See Mark A. Lemley, IP in a World Without Scarcity, 90 N.Y.U. L. REV. 460, 507 (2015) ("Once creation is cheap enough, people may do it without the need for any IP incentive."); cf. Jake Linford, Copyright and Attention Scarcity, 42 CARDOZO L. REV. 143 (2020) (considering how preserving copyright protection can lower attention costs). 158 See, e.g., Adler, Fair Use, supra note 46, at 572 (arguing that we are now "drowning" in a "sea of images"); Julie E. Cohen, The Regulatory State in the Information Age, 17 THEORETICAL INQUIRIES L. 369, 384 (2016) (using the term "infoglut" to describe how sophisticated speakers can create confusion and undermine certainty by overloading the public with speech); Tim Wu, Is the First Amendment Obsolete?, 117 MICH. L. REV. 547, 554-56 (2018) (discussing three technological and economic developments which have led to a flood of information, and positing that "[i]f it was once hard to speak, it is now hard to be heard"). 159 See Felix Salmon, The Musk Meme Economy, AXIOS (Feb. 9, 2021), https:// www.axios.com/meme-economy-tesla-elon-musk-c1e9c225-d8e2-4953-a591-0a29dacf2d4a.html [https://perma.cc/ELM6-VDEB] ("Attention is a commodity, which means that memes-a way of focusing and scaling attention-are a way to create value."). attention spans. 160 The visual nature of memes facilitates this quickness; as the Supreme Court observed long ago, visual images can be "a short cut from mind to mind." 161 As the Senior Editor of meme reference site Know Your Meme states:

The best memes are able to get a very specific idea across using very few words and a clear photograph or video. Based on how well those ideas are communicated, other people share them. There are other factors involved-who is sharing it, their follower count, who sees it, what platform it's on-but if you boil it all down, it's about that economy. 162 Indeed, mathematical studies of memes show how they compete, often effectively, for limited user attention. 163 In the First Amendment context, Tim Wu and others have famously observed that the digital age has ushered in a new "attention economy" 164 in which it is no longer speech that is scarce, but rather listeners' attention. 165 While Wu focuses on the rise of "attention merchants"-businesses like Facebook and others that exploit and resell our limited attention (and privacy) 166 -here we consider the relevance of the attention economy to individual speakers rather than platforms. Communicating by meme is a hack that gives individual speakers a fighting chance to be heard in our attention-scarce world. 160 We hope we have grabbed your attention by organizing this Article around memes. We could have written this Article without them, but would you have read until this point? 161 W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 632 (1943) (discussing this idea with respect to flags and emblems). 162 Zemler, supra note 144 (quoting Matt Schimkowitz). 163 See generally James P. Gleeson, Kevin P. O'Sullivan, Raquel A. Ba ños & Yamir Moreno, Effects of Network Structure, Competition and Memory Time on Social Spreading Phenomena, 6 PHYS. REV. X 021019 (2016) (distinguishing the roles of two factors affecting meme popularity: the memory time of users and the connectivity structure of the social network).

164 Tim Wu, Blind Spot: The Attention Economy and the Law, 82 ANTITRUST L.J. 771 (2019). 165 See Wu, supra note 158, at 548; see also Ellen P. Goodman, Media Policy out of the Box: Content Abundance, Attention Scarcity, and the Failures of Digital Markets, 19 BERKELEY TECH. L.J. 1389, 1392-93 (2004) (explaining that digital innovations have "multiplied content and freed audiences from network schedules"); G. Michael Parsons, Fighting for Attention: Democracy, Free Speech, and the Marketplace of Ideas, 104 MINN. L. REV. 2157, 2160 (2020) (arguing that the "marketplace for ideas" theory in First Amendment analysis should be built around attention). 166 See generally TIM WU, THE ATTENTION MERCHANTS: THE EPIC STRUGGLE TO GET INSIDE OUR HEADS (2016).

Memes, as a medium of communication, are not inherently good or bad. But it is inescapable that in recent years, in addition to spreading fun jokes and pictures of cats, memes have also been leveraged by extremist groups to spread propaganda, hate, and disinformation. 168 One prominent example comes from the fringe alt-right's use of sites like 4chan to weaponize hateful, racist, and antisemitic memes and to spread them into mainstream politics. 169 For example, the neo-Nazi site The Daily Stormer holds a weekly "Memetic Monday" in which they post image macros for memes designed to be shared on Facebook and Twitter. 170 One scholar argues that the fringe alt-right is so masterful at using memes to spread its views that it actually "memed Donald Trump into office." 171 The alt-right's mastery of the 167 Marked Safe, SLANGLANG, https://www.slanglang.net/memes/marked-safe [https:// perma.cc/7HK2-KJX6].

168 A high-profile example comes from the Pepe the Frog meme, discussed below in Section II.C.1. Even if the alt-right has been adept at leveraging memes, they can be marshalled in any political direction. That does not erase, however, their ability to coarsen and polarize our discourse, to spread disinformation, and, in doing so, to create threats to our national security. See generally Donovan, supra note 118. 169 DISINFORMATION ONLINE 36 (2017), https://datasociety.net/pubs/oh/ DataAndSociety_MediaManipulationAndDisinformationOnline.pdf [https://perma.cc/ R8GV-FQZN] (discussing the alt-right's use of memes as propaganda); see also Emiliano De Cristofaro, Memes Are Taking the Alt-Right's Message of Hate Mainstream, CONVERSATION (Dec. 12, 2018), https://theconversation.com/memes-are-taking-the-alt-rights-message-of-hate-mainstream-108196 [https://perma.cc/8FNC-9XHA] (describing a study finding that the alt-right web communities, such as 4chan's "Politically Incorrect" board (/pol/), generated "a wide variety of racist, hateful, and politically charged memes" and spread them to other parts of the internet). The Skeleton Key to the Rise of Trump, MEDIUM (Feb. 14, 2017), https://medium.com/ @DaleBeran/4chan-the-skeleton-key-to-the-rise-of-trump-624e7cb798cb [https://perma.cc/ meme genre is captured by a meme itself: the alt-right insult meme called "The Left Can't Meme." 172 Perhaps this should come as no surprise. The power of memes, as described above, is also their danger: their ability to virally spread quickly consumed, potently distilled messages that can grab attention in our attention-scarce world. That memes foster in-group sense of belonging and are often funny only adds to their power. It is no wonder that memes can be forceful tools of radicalization and polarization. 173 Yet even if the alt-right or other political groups have been adept at leveraging memes, they have also been marshalled in other political directions, and of course in non-political ones, as most of the memes we share in this Article illustrate.

What can we make of this dangerous capacity of memes from the perspective of copyright law, the primary focus of this Article? Copyright law is famously value-neutral about the creative works it promotes. 174 And to the extent copyright law is thought to embody First Amendment values, 175 First Amendment law is also famously contentneutral about speech (while of course shot-through with exceptions) 94N9-2ZDH] (discussing the Pepe the Frog meme as a symbol for why young men voted for Trump). 172 See The Left Can't Meme, KNOW YOUR MEME, https://knowyourmeme.com/memes/ the-left-cant-meme [https://perma.cc/W8RC-DRZV] (documenting this alt-right insult for the perceived failure of the left to use memes effectively).

173 E.g., Joshua Citarella, Marxist Memes for TikTok Teens: Can the Internet Radicalize Teenagers for the Left?, GUARDIAN (Sept. 12, 2020), https://www.theguardian.com/ commentisfree/2020/sep/12/marxist-memes-tiktok-teens-radical-left [https://perma.cc/ 8ULJ-MQSF] (suggesting that social media can, in addition to radicalizing the far-right, be a tool for progressive politicization); KAREN and generally urges "more speech" as the solution to dangerous speech unleashed in our free-for-all marketplace of ideas. 176 While memes are not inherently left-or right-leaning and while they can be marshalled for good or for ill, they do exemplify a change in the nature of online discourse itself. In an earlier digital era, popular and legal discourse tended to view the explosion of online speech as a tool of liberation and democratization. 177 Yet we are now in the midst of a reckoning about the threats that our online information ecosystem poses to democracy, public debate, and other urgent social issues. 178 As an emerging wave of First Amendment scholars grapples with the dangers of online communication (primarily focused on platforms), 179 we think memes deserve close scrutiny in this conversation. 180 176 See, e.g., Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring) (stating that in all but the most severe of emergencies, "more speech," and not "enforced silence," is the remedy). 177 In 1998, Kathleen Sullivan called the internet "First Amendment manna from heaven." Kathleen M. Sullivan, First Amendment Intermediaries in the Age of Cyberspace, 45 UCLA L. REV. 1653, 1669 (1998). A year earlier, the Supreme Court marveled at the internet's utopian potential, observing that it enabled "tens of millions of people to communicate with one another and to access vast amounts of information from around the world." Reno v. ACLU, 521 U.S. 844, 850 (1997); accord Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017) (describing the "vast democratic forums of the Internet" (quoting Reno, 521 U.S. at 868)).

178 E.g., HEATHER SUZANNE WOODS & LESLIE A. HAHNER, MAKE AMERICA MEME AGAIN: THE RHETORIC OF THE ALT-RIGHT 2 (2019) (arguing that alt-right meme discourse "became a regressive force on public culture, ultimately stultifying exchange"); Donovan, supra note 118 (recognizing the serious threat that emerges when "hoaxes and psychological operations" are globally propagated via memes).

179 E.g., WU, supra note 166. 180 Cf. James Grimmelmann, The Platform Is the Message, 2 GEO. L. TECH. REV. 217 (2018) (analyzing the difficulties of platform content moderation in our algorithmic, demand-driven media ecosystem by exploring the persistence of the Tide Pod meme).

Though it has not been the norm, there have been some copyright claims made as to memes. Some have sued for copyright infringement, some have asked for credit, and some have licensed memes. This Section describes and contextualizes some of the more prominent claims.

A mere handful of the countless number of creators of memes and their underlying images have asserted copyright claims against meme copyists to control the spread of their memes. 183 This low proportion indicates that most of the copying and creation happening with memes is currently happening outside of copyright's sphere. The claims that are brought tend to be brought by a meme creator (or creator of a meme's underlying image) against a commercial entity seeking to profit directly off the work, or against a copyist with a political or other message the creator deems to be undesirable. That said, as a final example in this Section shows, the threat of copyright infringement claims brought against everyday meme users who do not fit these paradigms lingers. 184 Some of the most successful, widely-copied memes have been the subject of copyright infringement lawsuits. These claims have not been brought one-by-one against each copyist but against a limited number of copyists, often for commercially using the meme. Take the Keyboard Cat and Nyan Cat memes. Keyboard Cat involves video footage of a cat dressed in human clothing and appearing to play a piano, a still of which is shown below. 185 Nyan Cat, also shown below, is described as "an 8-bit animation depicting a cat with the body of a cherry Pop-Tart flying through outer space." 186 These memes' creators sued Warner Bros. and 5th Cell Media for copyright and trademark infringement for using these characters in their Scribblenauts vide- 183 Someone pictured in a meme might also assert a claim for violation of their rights of publicity or privacy, which involve different bodies of law than copyright. Lantagne, supra note 107, at 420-23. See generally JENNIFER E. ROTHMAN, THE RIGHT OF PUBLICITY: PRIVACY REIMAGINED FOR A PUBLIC WORLD 1-7 (2018) (exploring laws that protect the right of publicity-defined as the right to prevent the unwanted commercial use and copying of one's name, likeness, and identity-and examining intersections with copyright, property, and privacy laws); Danielle Keats Citron, Mainstreaming Privacy Torts, 98 CALIF. L. REV. 1805 (2010) (proposing a modern approach to privacy torts that accounts for the longevity of harm stemming from digital-age privacy violations). For a comedic take on the dignitary and other harms someone depicted in a meme might suffer, see Saturday Night Live (NBC television broadcast Feb. 29, 2020) (Uncle Meme), https:// www.youtube.com/watch?v=A_mhtXadceM [https://perma.cc/LMQ7-HCDT]. For a more serious take, see Sirin Kale, Life Beyond the Meme: What Happens After You Go Viral, BBC (Mar. 7, 2019), https://www.bbc.co.uk/bbcthree/article/e6511d6a-ea8c-4e27-aac3-728205903635 [https://perma.cc/JZB5-66YG]; Neetzan Zimmerman, 'Star Wars Kid' Breaks Silence, Says Online Fame Made Him Suicidal [UPDATE], GAWKER (May 10, 2013, 9:41 AM), https://gawker.com/star-wars-kid-breaks-silence-says-online-fame-made-h-499800192 [https://perma.cc/EF4Q-KRYQ] (relating how the unwitting subject of a popular meme experienced extreme cyber-bullying, leading to his hospitalization for severe depression). 184 ogame, as also shown below. 187 The lawsuit settled a few months later, with the meme creators receiving payment for the characters' continued appearance in the videogame. 189 Keyboard Cat, supra note 185. 190 Nyan Cat, supra note 186. 191 This videogame screenshot is displayed in Keshishian, supra note 187.

Reddit (shown below) 192 -sued and won $710,000 for copyright infringement against the makers of Grumpy Cat Grumppuccino iced coffee drinks for exceeding the scope of a licensing agreement to use Grumpy Cat imagery. 193 Grumpy Cat 194 (left), and Grumpy Cat Grumppuccino Beverages 195 (right)

In a similar scenario, the mother (and photographer) of Success Kid (shown below) 196 sued the maker of a fireworks product called Back Off for copyright infringement after Back Off used her son's image on the packaging (also shown below). 197 According to the allegations, "Success Kid has generated substantial value, goodwill, and licensing revenue from authorized and age-appropriate commercial uses by companies who wish to associate Success Kid's goodwill with their products and services, including Virgin Mobile, Radio Shack, Bell Canada, Marriott Hotels, Medicare, General Mills, and Coca Cola." 198 The mother's lawyer noted further that "[w]e're not questioning the right of Internet users to use this. This is more about a company making our client a de facto endorser of an ageinappropriate product." 199 The case subsequently settled. 200 Success Kid 201 (left), and Back Off Fireworks 202 (right)

Other creators of memes and their underlying images have pursued copyright infringement claims against those whose messages they find detestable. As one high-profile example, Matt Furie, the creator of the Pepe the Frog character (shown below), 203 sued Alex Jones and Infowars for copyright infringement for making and selling Make America Great Again posters featuring Pepe the Frog (also shown below). 204 This came in the wake of members of the alt-right movement and Donald Trump adopting and repeatedly meming Pepe the Frog. 205 Furie opposed these messages using his character and in an attempt to disavow and stop these uses, he killed off the character by publishing a comic book featuring Pepe's funeral. 206 When Jones began selling a campaign poster featuring Pepe, Furie sued Jones. Though Jones and Infowars asserted many defenses to the infringement claim, including Furie's abandonment or implied license of his copyright in the character for letting nearly anyone and everyone else use it freely online, the district court held that Furie's infringement claim withstood the defendants' motion for summary judgment. 207 A few months later, the parties settled the lawsuit, and Infowars agreed to turn over its profits from the poster and cease selling anything featuring Pepe the Frog. 208 Pepe the Frogfoot_24 (left), and Alex Jones Poster Featuring Pepe the Frogfoot_25 (right) Success Kid, discussed above, had a related experience in which Success Kid's mother demanded that then-Congressman Steve King stop using the Success Kid meme (shown below using the meme for fundraising purposes), arguing copyright infringement. 211 She stated that King-whom she thought displayed bigotry and whom she called "vile"-was antithetical to the Success Kid meme, which "is about positivity and celebrates achievement," 212 further arguing that "bigotry is just the antithesis of what we want to be the association with the meme." 213 Steve King's Use of Success Kid 214

Copyright infringement claims over memes are rare and, as these examples show, have been brought mostly due to commercialization or undesirable messages. Yet the threat remains of broader assertions against run-of-the-mill meme users. 215 Consider Getty Images, which demanded over $800 from a German technology blog for using a penguin photograph at the base of the successful Socially Awkward Penguin meme (shown below). 216 After the claim received news coverage that was unfavorable to Getty, 217 Getty Images defended its right to protect its copyright interests. 218 The blog paid up, but even 212 @LaneyMG, TWITTER (Jan. 27, 2020, 3:50 PM), https://twitter.com/laneymg/status/ 1221898247461056514 [https://perma.cc/BY62-2PPT]; Brennan, supra note 211. 213 Alan Yuhas, Mother of 'Success Kid' Demands Steve King Stop Using His Meme, N.Y. TIMES (Jan. 28, 2020), https://www.nytimes.com/2020/01/28/us/politics/steve-king-success-kid-meme.html [https://perma.cc/LG3S-LLS5]. 214 Id. 215 See Neda Ulaby, Will Posting Memes or Pro Wedding Pics Land You in Copyright Small Claims Court?, NPR (Mar. 12, 2021), https://www.npr.org/2021/03/12/957054009/will-posting-memes-or-pro-wedding-pics-land-you-in-copyright-small-claims-court [https:// perma.cc/92XB-6LHJ].

216 Socially Awkward Penguin, KNOW YOUR MEME, https://knowyourmeme.com/ memes/socially-awkward-penguin [https://perma.cc/W4CL-MNPN]. 217 See, e.g., Mike Masnick, Getty Images Goes Copyright Trolling After a Meme Penguin (Sept. 8, 2015), https://www.techdirt.com/articles/20150908/00155432189/getty-images-goes-copyright-trolling-after-meme-penguin.shtml [https://perma.cc/3GJX-LAQW] (referring to Getty Images' behavior as "particularly stupid" and "absolutely ridiculous"). 218 Kevin Collier, Getty Claims Copyright on Socially Awkward Penguin, Forces Site to Pay $868, DAILY DOT (May 28, 2021), https://www.dailydot.com/unclick/socially-awkward-penguin-meme-getty-lawsuit [https://perma.cc/R7UZ-B6L9] (quoting a Getty though Getty Images asked that the settlement be kept confidential, the blog posted about the demand and how unreasonable it thought the terms were. 219 The blog also created a new version of the penguin meme (shown below) that does not use the Getty Images penguin and encouraged others to use it to avoid a claim against them. 220 Techdirt referred to Getty Images's behavior as "shaking down a blog" rather than protecting copyright. 221 Techdirt's article elaborated:

No one is using this meme because of the photograph itself, and as can be seen by the alternative version, there's nothing special about this penguin that makes it especially necessary for this meme. It's just a crazy meme that got popular on the internet, not because of Getty and not because of [the photographer]. 222

Some meme creators choose to seek credit from copyists rather than pursue copyright infringement claims against them. The most notorious example of this involves the Instagram user FuckJerry, also known as Elliot Tebele, who has become infamous for his involvement in promoting the failed Fyre Festival. 226 FuckJerry's Instagram account mainly posted jokes and memes to its 14.3 million followers, but also made money from sponsored posts. 227 Comedians and meme creators became upset upon realizing that the account would post their jokes and memes to advertise products without creator credit. 228 Many of them asked for credit or, in the alternative, for deletion of the copied content. As shown in one example below, FuckJerry simply responded, "Shut up." 229 After these requests went nowhere, a number of copied comedians and memists banded together to shame FuckJerry and cause the account to lose its lucrative followers. They initiated the hashtag #fuckfuckjerry and asked the public to unfollow the account. 230 After Comedy Central decided to pull its advertising from FuckJerry in response to this public response, Tebele apologized and promised to do better with regard to conferring credit when using others' content. 231 Example of Request to FuckJerry for Credit

As the previous Sections on litigation and credit-seeking imply, there is also some licensing market for memes, even though most memes are copied and used entirely freely. Licensing tends to be by meme creators to established businesses, as Success Kid's mother suggested. 234 There is enough public expectation that memes will be licensed by businesses such that when T-Mobile aired an ad during the Super Bowl riffing on a viral meme (shown below), viewers were outraged by this copying, as shown in one example below, until the CEO tweeted that the meme was licensed. 235 Original Meme 236 Just as Ben Shapiro, the conservative political commentator, is asserted online to "destroy" every liberal concept and person he opposes, so too do memes threaten the core principles of copyright. As we explore below, memes pose a fundamental challenge to copyright law by violating copyright's central tenets of creativity, commercialization, and distribution, which we explored in Part I. Whereas copyright law at its core views unauthorized copying as a threat to creativity, memes, a paradigm of contemporary creativity, 240 owe their very existence to limitless, unauthorized, viral copying. 239 Ben Shapiro DESTROYS Liberals, KNOW YOUR MEME, https:// knowyourmeme.com/memes/ben-shapiro-destroys-liberals [https://perma.cc/KJZ9-5WR2]. 240 See supra Section II.B.

Whereas copyright law envisions an author who wants to fend off unauthorized copying, 242 meme creators want just the opposite: They want their work to go viral, to be copied and remixed as much as possible. 243 They want to lose control of their work. 244 Mr. Bean, KNOW YOUR MEME, https://knowyourmeme.com/memes/subcultures/mr-bean [https://perma.cc/PKB4-9NRR].

Memes turn a central pillar of copyright theory on its head. In previous work, we explored ways in which unauthorized copying can surprisingly stimulate the market for an underlying work rather than undercut it, thereby enriching the infringed-upon party. 246 This phenomenon is surprising because it directly defies a fundamental premise of copyright law, that unauthorized copying harms the market for original works and must be prohibited in order to incentivize creation. 247 Memes exemplify this phenomenon in which unauthorized copying helps rather than harms the original creator. 245 Success Kid / I Hate Sandcastles, supra note 196. 246 Adler, Fair Use, supra note 46 (exploring examples where unauthorized copying in art does not harm, and may even bring market benefits to, an original artist); Adler, Why Art Does Not Need Copyright, supra note 22, at 318-20 (exploring how unauthorized copying in art can bring economic benefits to original creators); see Adler & Fromer, supra note 47, at 1508-10 (providing an example of how copying might stimulate rather than undercut the market for the original work); Jeanne C. Fromer, Market Effects Bearing on Fair Use, 90 WASH. L. REV. 615, 616 (2015) (arguing for the assessment of market benefits as well as harms in fair use law); accord Kristelia García, Monetizing Infringement, 54 U.C. DAVIS L. REV. 265 (2020) (exploring how rightsholders can monetize being infringed upon). 247 See supra Sections I.A-C. But cf. Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1206-08 (2021) (analyzing the effect of Google's use on Oracle's market by pointing not just to harms, but also to benefits).

In fact, memes depend for their very existence on unauthorized copying. Quite simply, a meme does not even come into being until it has been repeatedly copied. 248 Copyright law instructs us that unauthorized copying threatens to usurp the market for an original, but in memes, copying is what creates the value of the original in the first place. 249 In this new environment, creators therefore create works with an eye to inviting copying rather than warding it off. Virality is the goal; the prospect of being copied is the incentive. 250 This is true not only of meme creators, but many creators in the digital environment, who understand that if images or clips of their works become memes, this will ultimately add value to the original work or to whatever else the creator may be marketing. 251 Nothing in copyright theory can describe this or even fathom it.

Consider Drake. His megahit music video for his song "Hotline Bling" (a still of which is pictured below) spawned endless memes, 252 to the point where the proliferation of memes it inspired became a story in its own right. The "Hotline Bling" story was more than a social media phenomenon. Traditional media outlets like USA Today and Time wrote articles about the best "Hotline Bling" memes. 253 The memes bled into real life: A football player for the Baltimore Ravens copied Drake's moves in his victory dance after kicking the winning field goal in a game; players on other teams have done the same. 254 Still from Drake's "Hotline Bling" Video 255 What is extraordinary is that Drake, seeking a smash hit, designed the video to have exactly this result. As his partner and choreographer explained, "[A]ll those memes and [mashups], he knew that was going to happen!" 256 Writing in the New York Times, rock critic Jon Caramanica explained how the video was designed to be broken down into GIFs and screenshots to ensure it was copied and reused. 257 He wrote, "[i]t's less a video than an open source code that easily allows Drake's image and gestures to be rewritten, drawn over, [and] repurposed." 258 The relatively empty backgrounds of the video function almost like a green screen built for remixes. And Drake's slightly dorky dance moves were also "more or less blank." 259 Lacking contemporary references and characterized by "small moves that [Drake] repeats," the music video presented readymade GIFs of Drake for his copiers. 260

Creators in meme culture not only hope that their works will be copied; they also hope their works will be altered and changed in unforeseen ways. Again, this creative goal violates basic assumptions that inform copyright law. Whereas copyright law pictures a creator who wishes to guard their work's integrity 262 and who will license derivative uses only if they meet the creator's criteria, meme culture envisions a creator who wants to lose control of their work and to open it up to constant revisions, reuses, and misuses. 263 In this way, we 260 might compare memes to certain instances of graffiti art: work that exists to be written over, transformed, and revised. 264

As just discussed, copying creates value for the underlying original work or expression rather than detracting from it. Sharing memes based on an underlying copyrighted image "helps ingratiate their brand into the culture to have their work copied all around the Internet." 266 RealityGif, a website that posts images from numerous reality television shows including The Real Housewives of Beverly Hills, 267 has never received a request to take down content or pay for copyrighted material, suggesting the underlying content owners realize the promotional value that these meme spreaders generate for the material. 268 In fact, one lawyer advises that if your image has been turned into a meme, the first thing to consider instead of suing is "whether you might be able to turn the meme into a form of advertising for your own business." 269

Copyright law is also built on the premise that providing creators with exclusive rights will encourage people to create expressive works from which they can directly profit. 271 The meme economy subverts that assumption because most meme creators do not directly earn money by exercising copyright's exclusive rights. Instead, they typically receive no monetary compensation for their creations or, if they do, they profit only indirectly off a meme's success.

Most people who create and share memes do so not to earn money, but merely to engage with others on social media. 272 The main reasons young people share memes is to make others laugh, to react to something in conversation, to communicate how they are feeling especially when they feel words will not do, and to convey code to somebody who will "get it." 273 As one journalist explains, "[m]ost users 269 Id. 270 Agnes Harkness Winking, KNOW YOUR MEME, https://knowyourmeme.com/memes/ agnes-harkness-winking [https://perma.cc/E6G8-BSKM]. 271 See supra Section I.C. 272 See 3 Stats That Show What Memes Mean to Gen Z & Millennials, YPULSE (Mar. 5, 2019), https://www.ypulse.com/article/2019/03/05/3-stats-that-show-what-memes-mean-to-gen-z-millennials [https://perma.cc/UHH6-W6E8] (highlighting statistics regarding the frequency and ubiquity of meme sharing across younger demographics, and presenting survey data to show that the majority of meme sharers do so to elicit smiles, laughs, or reactions (citing Q1 2018 YPulse Trend Report: Home Sweet Home, Talk the Talk, Ain't Nobody Got Time for That, YPULSE (Mar. 30, 2018), https://www.ypulse.com/report/2018/ 03/30/q1-2018-ypulse-quarterly-talk-the-talk-home-sweet-home-aint-nobody-got-time [https://perma.cc/L87S-XFYA])). 273 Id.

likely don't have big plans to copyright their tweets or TikToks for any reason, and many find a thrill in going viral." 274 The many free meme generators online help these users craft and adapt memes to share, which they can easily do on a myriad of social media platforms. 275 The prevalence of this sort of creativity thus challenges copyright's core assumption that copyright law is necessary to incentivize the creation and distribution of expressive content.

A smaller but important group of meme creators and sharers profit from memes, but almost never directly. 276 Even though they do not charge others for access to or use of their memes, creators can make significant money indirectly due to their success in creating and sharing memes. In particular, meme creators and sharers can attract loyal and significant numbers of followers based on their meme niche, be it about parents, cats, science, law, or politics. 277 That in turn can generate profit opportunities for these meme creators and sharers. For example, in 2016, the FuckJerry Instagam account discussed earlier 278 was on track to make $1.5-3 million based on sponsored posts they shared to their more than ten million followers by charging a fixed cost plus a cost per follower. 279 These followers came for the freely shared memes and also viewed the sponsored content, allowing FuckJerry to profit indirectly. Similarly, well-known meme creators have been hired by established businesses, such as Gucci, to create memes to be copied and shared with the objective of capturing consumers. 275 See supra note 150 and accompanying text. 276 See, e.g., supra Section II.B (exploring the culture surrounding memes and situating memes within the market of attention rather than a monetary market); cf. Vaughan, supra note 250 (presenting a user guide for creating valuable memes, with objectives focused on traffic, visibility, and virality, rather than profiteering). But see supra Section II.C.1 (discussing a few meme lawsuits focusing on copier profit-extraction); supra Section II.C.3 (commenting on how some-albeit a very select few-memes are licensed by larger companies). 277 See, e.g., Jane, How to Make Money with Memes in 2021, THIS MAMA BLOGS (Aug. 16, 2021), https://thismamablogs.com/make-money-with-memes [https://perma.cc/CPV4-F7LA] (encouraging making memes that resonate with the maker's audience by picking a niche such as parenting or cat ownership). 278 280 Kam Dhillon, Here's How Much Money You Can Make with Memes, HIGHSNOBIETY, https://www.highsnobiety.com/p/how-to-make-money-with-memes [https://perma.cc/WV22-746G] ("While many devotees heralded the [Gucci] campaign as the grizzly death of meme culture, for marketing teams everywhere the campaign proved As previously discussed, a select few creators-such as the creators of the Success Kid and Grumpy Cat-monetize their memes through copyright licenses to traditional companies. 281 Yet this rarefied group operates in contrast to the rest of meme culture and against the practices of even the most successful meme creators and sharers. But even meme superstars who pursue lucrative licensing opportunities generate these opportunities principally by allowing their memes to be widely and freely shared, thereby defying the prototypical copyright story.

Following from the different ways that business happens in the meme economy is the observation that it is becoming harder to distinguish between commercial and non-commercial activity for the purpose of fair use analysis. 283 As per the copyright statute, fair use turns how the meme remains a largely untapped resource to cannibalize within our attention economy."); Jane, supra note 277. 281 See supra Section II.C. 282 Daily Struggle, KNOW YOUR MEME, https://knowyourmeme.com/memes/daily-struggle [https://perma.cc/T3AF-XK9B]. 283 The law also sometimes distinguishes between commercial and non-commercial activity with regard to infringement, but in limited ways. Specifically, with regard to copyright's exclusive rights of public performance and public display, copyright law in part on "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." 284 Courts have struggled mightily with whether a defendant's use is commercial. The Supreme Court has explained, "The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price." 285 That so-called explanation has mystified courts and scholars, particularly because "profit from exploitation" seems inextricably tied to using copyrighted work without paying. 286 This already difficult-to-draw line between commercial and noncommercial use becomes even less precise in a meme economy in which successful creators and sharers tend to profit only indirectly, if at all, from their memes. It is very hard to determine, even notwithstanding the already-confusing copyright doctrine on commerciality, whether creators are engaging in commercial or non-commercial exempts certain activities best described as nonprofit. See 17 U.S.C. § 110 (outlining permitted displays or performances, providing they are of a non-commercial nature). Moreover, the Audio Home Recording Act prohibits an infringement action "based on the noncommercial use by a consumer of [an audio recording] device or medium for making digital musical recordings or analog musical recordings." Id. § 1008. This exception is fairly limited, as Congress chose not to include home computers as such devices. Id. § 1001(3) (specifying that a "digital audio recording device" means a device that is designed or marketed "for the primary purpose of" making an audio recording); Recording Indus. Ass'n of Am. v. Diamond Multimedia Sys. Inc., 180 F.3d 1072, 1078 (9th Cir. 1999) (finding that computers are not digital audio recording devices given the legislative history of the Audio Home Recording Act). 284 activity. 287 This haziness might make fair use determinations in this context yet less predictable. 288

Memes break down copyright law's assumptions further by laying bare the lack of distinction between idea and expression, that distinction being a central tenet of copyright law. 290 Consider the Mocking SpongeBob meme shown above. Under traditional copyright analysis, the image itself (not to mention the text superimposed on it) is classic protectable expression. Yet meming an image can transform that expression into an idea. In the context of the Mocking SpongeBob meme, the image represents "a mocking tone towards an opinion or point of view." 291 The presence of that image now indicates that idea, either with or without accompanying text, perhaps even more than it conveys the image as expression. 292 To the extent that this SpongeBob image becomes synonymous with mockery, various people can use this same image to represent "mocking" tones in a multitude of situations. Therefore, the image is now sometimes expression, sometimes idea, or perhaps sometimes both simultaneously. This example reveals a characteristic of memes writ large: memes break down copyright's idea-expression distinction, rendering it as nonsensical as SpongeBob himself sometimes can be. 293

The ability to launch and spread a meme virally on a mass level can happen in hours, as social media and other internet platforms are, as Limor Shifman puts it, "'express paths' for meme diffusion." 295 As discussed earlier, viral memes are not only copied, but they are also transformed. 296 A Gen Z-er studying memes writes that viral memes "[T]he characters on Spongebob . . . are incredibly direct in what emotion they're trying to express," with no real expressive subtlety. Id. SpongeBob is just his emotions, "which makes it much easier for people online to use them essentially as emojis and share them to express how they're feeling about a particular subject." Id. (quoting Matt Schimkowitz). 293 Cf. Lantagne, supra note 107, at 408 ("[M]emes are no longer pieces of creative expression so much as they are the basic building blocks of cultural communication."). 294 Very Fast, IMGFLIP, https://imgflip.com/meme/178062637/Very-Fast [https://perma.cc/ 62KZ-2UZM].

295 SHIFMAN, supra note 96, at 18. 296 See supra Sections III.A-B.

can have "thousands of variations and a huge online presence on social media. If [a] meme does happen to go viral, this means that it has diffused through society, or the Internet, and has been widely recreated. This meme will be visible everywhere, from Facebook to college professors' lecture slides."foot_32 They are copied and transformed at an exponential pace, something that is easy through social media's facilitation of speedy cooption and virality, not like your grandfather's copyright.foot_33

What this scale and pace of copying also means is that innovation in the world of memes is proceeding at a supersonic pace. Copyright's duration of an author's lifetime plus seventy yearsfoot_35 seems like a misfit for memes that can hit it big and go stale all in the matter of weeks. 301 Many memes decay with a quick half-life-on the order of days and weeks-leading new memes to rise up and take their place. 302

Another way in which memes upend copyright's assumptions is with regard to selectivity of enforcement. Recall that copyright law permits owners to choose whether to license their exclusive rights and to whom. 304 By default, then, very few people or entities are likely to have express license to any of the copyright rights. The major exceptions are for open-source software, a work licensed by Creative Commons, 305 or a work with a shrinkwrap license. With such a mass license, the use of these works is restricted only by the use terms of 302 See Eileen Brown, The Maths Behind the Memes: Why We Share on Social Media, ZDNET (July 25, 2017), https://www.zdnet.com/article/the-maths-behind-the-memes-why-we-share-on-social-media [https://perma.cc/7K6Q-2TRR] (studying mathematically the brief popularity-window of memes); Lonnberg, Xiao & Wolfinger, supra note 250 (modeling how memes "are spread rapidly by internet users, often for a relatively short period of time"). 303 Pepe the Frog, supra note 203. 304 See supra Section I.F. 305 As explained by the organization itself, "Creative Commons is a nonprofit organization that helps overcome legal obstacles to the sharing of knowledge and creativity to address the world's pressing challenges." What We Do, CREATIVE COMMONS, https:// creativecommons.org/about [https://perma.cc/RDS4-5WBY].

the license, rather than the user's identity. What unifies these exceptions is that they are offered on a take-it-or-leave-it basis uniformly to everyone. 306 Meme licensing differs from these scenarios in terms of the selectivity of enforcement. Writ large, copying and transforming memes is tolerated and typically encouraged, 307 an opposite scenario from copyright's assumed default. 308 Yet at the same time, some meme creators employ almost surgical exclusion to prevent a handful of people or groups whose messages they do not like from using their memes. Recall Pepe the Frog's creator deploying copyright to stop Alex Jones, and Success Kid's mother doing the same to stop Steve King. 309 In these situations, only very few have no permission to use the copyrighted work because of their views or message while all others can use, copy, and transform the same meme freely, making this different both from copyright's assumed default and take-it-or-leave-it licenses.

Another way in which memes undermine copyright's core tenets is that they decentralize the author 311 and instead center the meme itself. Compare this situation with more traditional works like songs, books, paintings, or movies. While not everyone can identify the singer who recorded Hotline Bling, the author who wrote The Catcher in the Rye, the painter who created Starry Night, and the director, writer, and actors of Nomadland, many can and will associate such 306 For an exploration of these types of licenses side by side, see JEANNE C. FROMER & CHRISTOPHER JON SPRIGMAN, COPYRIGHT LAW: CASES AND MATERIALS V.3.0, at 654-65 (2021). 307 See supra Sections III.A-B. 308 See supra Section I.F. 309 See supra Section II.C. 310 Bye Felicia, KNOW YOUR MEME, https://knowyourmeme.com/memes/bye-felicia [https://perma.cc/PTY8-T3JG]. 311 See supra Section I.G.

works importantly with their respective authors. People understand these works as shaped by the authors' particular circumstances and viewpoints. 312 Such author-centricity is even characteristic of many works made for hire, such as software. Many people are involved in a meme's creation and spread: Someone creates an underlying image used to make a meme, someone turns it into a meme, and then others copy and transform that meme. Indeed, copyright law might label many of these actors as authors. 313 But despite the possibility of legal authorship recognition, even the most well-known memes, like Distracted Boyfriend, 314 are identifiable not by any of these creators but rather are known as the meme and its variations. This is true even when one can trace a meme's spread to particular individuals and identify the author of the underlying image, as the Know Your Meme reference site sometimes does. Moreover, authorship lacks centrality even though the multiple layers of contributions offer potential opportunities for individual identification. 315 Memes are dissociated from their creators; authors rarely-if everreceive personal recognition. As literary scholar Marta Figlerowicz explains:

[A]ny image or quip that becomes an internet meme begins as some particular user's act of self-expression. But if it is successful it evolves into a piece of cultural syntax, cycling through many people's perspectives and becoming divorced from its original context. Soon that original context-or any other single iteration of the meme-matters little to its current or its fullest meaning. At its most interesting, a meme is a cloud of variants and reuses, coming alive in each reenactment but meaningful only when one thinks of the abstraction at its center. 316 312 Cf. Mala Chatterjee, Understanding Intellectual Property: Expression, Function, and Individuation 4-5 (Aug. 2, 2021) (unpublished manuscript) (on file with the New York University Law Review) (making the case that works protected by copyright law are individuated by author, making authorship central to these works). 313 See supra Section I.G. 314 See Distracted Boyfriend, supra note 299. 315 In this way, authorship is more profuse and arguably egalitarian than it once was. Everyone is now an author, yet authorship matters less. Cf. Chatterjee, supra note 312 (positing that authorship of artistic works is central to copyright law as artistic works are distinguished by the identity of their authors). 316 Marta Figlerowicz, It Me: The Trouble with Memes, YALE REV. (May 19, 2021), https://yalereview.org/article/it-me [https://perma.cc/FK7F-4AV2]; accord Donovan, supra note 118 ("Importantly, as memes are shared they shed the context of their creation, along with their authorship. Unmoored from the trappings of an author's reputation or intention, they become the collective property of the culture. As such, memes take on a life of their own.").

This aspect of memes is true to Richard Dawkins's original conception in The Selfish Gene. 317 Just as Dawkins theorized that living creatures exist to transmit and propagate their genes, one might say that authors exist to create, transmit, and copy memes. 318 That is not necessarily to strip the agency from the humans involved in the creation and spread of memes, 319 but to recognize that memes stand and thrive apart from their human creators and that these creators are less identifiable than copyright law imagines authors would be. 320 The traditional copyright view is that the work is entirely indebted to its author. The author is the "mastermind," as the Supreme Court said long ago, without whom the work would not exist. 321 Indeed, the moral rights interpretation of copyright-in Europe and also enshrined in American copyright law in the Visual Artists Rights Act 322 -pictures the author's relationship to the work as even deeper. 323 The work of art is pictured metaphorically as the artist's child. As the Second Circuit explained, the parent/author 317 See supra notes 95-97 and accompanying text. 318 Cf. Figlerowicz, supra note 316 ("[B]oth genetic tendencies and cultural trends gain their fullest expression on the level of large populations rather than individuals. And so any particular self serves merely as a temporary means by which a gene, or a meme, perfects itself and prolongs its survival."). 319 See Henry Jenkins, A Meme Is a Terrible Thing to Waste: An Interview with Limor Shifman (Part One), CONFESSIONS OF AN ACA-FAN (Feb. 17, 2014), https:// henryjenkins.org/blog/2014/02/a-meme-is-a-terrible-thing-to-waste-an-interview-with-limor-shifman-part-one.html [https://perma.cc/2HGL-DVLN] (emphasizing the meaning and structures people build around memes). 320 In this regard, Kale Salad, an Instagram meme account, is an anomaly in seeking to track down the origin of particular memes and credit the original meme creator. See Shelby Black, Meet Kale Salad, the Meme Account Giving Creative Ownership Back to the Internet, PAPER (Feb. 7, 2017), https://www.papermag.com/meet-kale-salad-the-meme-account-giving-creative-ownership-back-to-the-2245569929.html [https://perma.cc/QP9V-E9PS]. Even so, crediting the original meme creator fails to recognize the multiple people who played an essential role in creating and contributing to a meme's meaning and existence.

321 Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 61 (1884) (stating that authorship "involves originating, making, producing, as the inventive or master mind, the thing which is to be protected" (internal marks omitted)); see also Aalmuhammed v. Lee, 202 F.3d 1227, 1233 (9th Cir. 2000) (expanding on the "mastermind" approach in works involving joint authorship). 322 "injects his spirit into the work." 324 And the work must be preserved exactly as the author intended it to be. 325 But in memes, as in so many creative works in digital culture, if the creative work is the artist's child, then we see what happens when the child grows up and leaves home. 326 Now the work takes on a life of its own; it becomes promiscuous, changing, and mutating, being reworked by other authors and other memes it meets up with in the digital landscape. Instead of being preserved just as the author/parent envisioned, the work mutates, travels, and ultimately becomes parent in its own right, giving birth to an endless array of works that use the first work as a template for further creativity.

This view of the meme as a child who has grown up and left home bears some relationship to the biological origins of the term "meme," in which the gene, like the work, retains agency. Indeed, there is debate in memetics scholarship about how to conceive of human agency in relation to memes: Does the meme, like a gene, control the people who reproduce and disseminate it, or do human agents exert power over the meme? 327 Whatever the answer, we can see that we are a far cry away from the copyright's vision of the author: the allpowerful mastermind or parent, who controls the obedient work.

What memes contribute and how they depart from copyright law reflects an ongoing progression of creativity in contemporary culture. At the beginning of the twenty-first century, technologists touted Web 2.0 with its emphasis on user-generated content, 328 while legal scholars worried that cheap-to-create, often amateur, content-frequently posted on YouTube-was a poor fit for copyright law. 329 Now that the internet has advanced many versions to integrate-among other things-smartphone-generated content and social-media interconnectivity, 330 creativity has morphed as well to fit our dramatically changed technological landscape. Many of the characteristics of memes we have explored so far build on the creativity features of Web 2.0, yet technological changes allow them to progress well beyond them. Whereas with earlier online creativity, people copied pre-existing commercial works and posted them on a platform like YouTube for others to see, memes instead reflect a participatory creative culture, in which people iterate on each other's creative works, continuously transforming them again and again into new versions. 331 Scholars from over a decade ago who analyzed Web 2.0 explored how usergenerated content, drawn from pre-existing works, would often cause no harm to the market for the underlying works. But even more than causing no harm, the copying involved in memes actually creates value for underlying works. 332 Whereas the amateur creativity of Web 2.0 was principally attributable to each creator, meme creativity has decentered the author and often rendered attribution unlikely, if not impossible. 333 Moreover, the scale of copying in memes proceeds at a pace unknown even in Web 2.0. 334 In short, contemporary creativity has shifted dramatically in the decade since legal scholars first considered the effects of digital technology on cultural production. This shift defies many more of the fundamental expectations on which copyright law and theory are based.

In all the ways explored in this Part-with regard to creativity, commercialization, and distribution of works-memes break down many core assumptions of copyright law. Given this disconnect between copyright law and meme culture, we now turn to how copyright law should think about memes. 330 See Kris Spisak, Eras of the Web-Web 0.0 Through Web 5.0, BUS. 2 CMTY. (Sept. 13, 2019), https://www.business2community.com/tech-gadgets/eras-of-the-web-web-0-0-through-web-5-0-02239654 [https://perma.cc/35JF-R8FW] (defining the "Mobile Web" as a new "Web 4.0"). 331 See supra Section II.B.3. 332 See supra Section III.B. 333 See supra Section III.I. 334 See supra Section III.F.

As we have shown, memes upend many of copyright law's central assumptions. Yet memes are creative works that fall within the scope of copyright law, as original works of authorship fixed in a tangible medium of expression. 336 Creators deemed to be authors pursuant to copyright law can assert their exclusive rights to prevent others from copying and transforming their works. 337 As such-and as particularly exemplified by the Socially Awkward Penguin scenario detailed previously-we think that applying copyright law as is to memes is dangerous if one wants to preserve meme culture. 338 Because copyright law currently covers memes, it enables the assertion of infringement claims in ways that can destroy meme culture precisely because of the multiple mismatches just explored. We think that these mismatches ought to be taken into account in determining whether and how to apply existing copyright law to memes, how to modify the applicable 335 Running Away Balloon, KNOW YOUR MEME, https://knowyourmeme.com/memes/ running-away-balloon [https://perma.cc/XS4S-QFJH]. 336 See supra note 6 and accompanying text. 337 See supra Part I. 338 See supra Part II.

legal regime, or-ultimately-whether any governing legal regime is ever appropriate.

Over its centuries, copyright law has seen many new media forms and technologies of distribution develop, including photography, motion pictures, television, VCRs, search engines, and social media. In turn, Congress and courts have contended with whether and how to apply existing copyright rules to these new forms. 340 Many of these new forms are swept into copyright law, sometimes evaluated under pre-existing rules and other times under modified rules.

At the same time, some expressively creative works-longstanding forms as well as newer phenomena-sit outside of copyright law. They do so for one of two reasons: Either these works are excluded from protection by copyright's rules or are protectable but generally not challenged by the relevant creative community. Yet creativity flourishes in both contexts, yielding a rich set of expressive works without reliance on copyright protection. 341 Studied categories of works excluded from copyright protection where creativity prospers include stand-up comedy, 342 cuisine and recipes, 343 and magic. 344 In general, works in these categories often fail copyright's requirements of originality, fixation in a tangible medium of expression, or not being a method. 345 Creativity also prospers without reliance on copyright law in some spaces in which it is likely available, such as tattoos 346 and makeup designs for clowns. 347 Such contexts in which copyright is available but not asserted tend to be characterized by communal norms against invoking copyright law. Instead creators rely on alternative norms to register or enforce "claims" of ownership. 348 Consider tattoos: As Aaron Perzanowski explains, even though copyright law can be invoked to enforce rights in tattoo designs, the tattoo community instead relies upon its own norms-sometimes for copying, sometimes against-out of a shared "disdain for authority and a history of harsh legal regulation that renders them generally hostile to the legal system," as well as a "sensitiv[ity] to consumer expectations." 349 Rights enforcement in meme culture currently is closer to that of tattoos than stand-up comedy or movies. That is, copyright law is generally available to protect memes but copyright claims are infrequently brought against meme copyists, transformers, and distributors. 350 As long as this norm continues to hold, meme culture and the creativity flourishing within it can carry on mostly unimpeded.

Yet norms that tend to tolerate copying and favor nonenforcement of copyright are not always stable. Sometimes norm-shifting occurs in response to a legal change. For example, although fashion designs were long understood to be uncopyrightable or minimally copyrightable due to their functional aspects, 351 the Supreme Court in 2017 established a more protective framework for copyrightability of fashion designs. 352 Although it is still an open question whether copyright claims regarding fashion designs will significantly increase, 353 the Supreme Court's decision disrupted an equilibrium in the fashion industry regarding copyright enforcement.

Norm shifts (and changes in copyright enforcement practices) can affect the type of works that are created in the first place. Consider the practice of sampling in hip hop. In decades past, the two most common types of sampling were use of a single song segmentwhether or not repeatedly or recognizably-and a combination of many song segments or elements. 354 This latter type of "mash up" sampling, exemplified by the Beastie Boys' widely-praised album Paul's Boutique, 355 has mostly been abandoned in favor of the former type because of a few copyright rulings against samplers. 356 As Rolling Stone put it, the Beastie Boys' album "sampled everyone from the Ramones to Mountain to the Funky 4+1 and stitched together song fragments in a way rarely seen before or since." 357 Even though copyright law was even murkier at the time about the need to license their samples, the band had licensed the 105 songs sampled on the album for $250,000. 358 After the adverse copyright rulings, sampling licenses became costlier and were understood to be necessary (at least as a practical matter for risk-averse record companies); it is estimated that these licenses today would cost $20 million, a prohibitively expensive price. 359 In this way, copyright law changed hip hop music, moving it away from songs comprising interwoven mash-ups to those with a single or limited number of samples, a more affordable practice. 360 Some have argued this result is good, as those who are sampled get paid, 361 while some have argued the opposite in that it has stifled valuable creativity. 362 But nevertheless, these rulings have undeniably changed the landscape of hip hop music.

In short, when copyright claims might plausibly be brought, nonenforcement norms are unstable and can shift in response to even a single legal ruling, leading to changes in the works created. If a culture is worth preserving, as meme culture might be, leaving copyright law to lurk in the background as a potential disruptor leaves the possibility of significant alterations or curtailments of this culture. Depending on one's take on meme culture, perhaps this is a good thing or perhaps this is a bad thing, but either way it should be contended with.

If one wants to preserve meme culture in the current copyright regime, one is left with an unstable situation given the inconsistencies between meme culture and copyright law's premises. The most significant barrier against norm destruction via copyright assertions could be www.rollingstone.com/music/music-news/how-the-beastie-boys-made-their-masterpiece-186788 [https://perma.cc/7MCN-DA93]. 356 The most notable such ruling is Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005), which held that there is no de minimis exception to infringement liability for copying sound recordings.

357 ROLLING STONE, supra note 355. 358 Casey C. Sullivan, How Litigation Changed Hip Hop Sampling, GREEDY ASSOCIATES (July 28, 2015), https://blogs.findlaw.com/greedy_associates/2015/07/how-litigation-changed-hip-hop-sampling.html [https://perma.cc/5USB-BNVV]. 359 Id. 360 Cf. Lloyd, supra note 354, at 154 (observing that, due to the imprecise statutory guidance concerning music sampling, "the act of clearing a sample can be a convoluted and expensive process for an artist"); Sullivan, supra note 358 (concluding that sample-heavy music has become more difficult and expensive).

361 E.g., Terry Hart, License to Remix, 23 GEO. MASON L. REV. 837 (2016). 362 E.g., Lloyd, supra note 354, at 170 (arguing that increased litigation involving unauthorized sampling will deter artists from crafting certain creative works).

collective shaming upon those who opt to bring legal claims, as occurred in the Socially Awkward Penguin meme dispute described above. 363 Such shaming can help keep the copyright nonenforcement norm relatively intact. 364 Even so, one must accept the deep instability given the many disconnects between copyright law and meme culture. As such, promotion of robust affirmative norms or changes to copyright law may be preferable to better harmonize the two spacesissues to which we now turn.

Attribution for meme creation, transformation, and distribution is one possible norm that meme culture might take on as an alternative (or supplement) to copyright protection, though it is likely unworkable. Indeed, as discussed above, attribution has already reared its head in meme culture. 366 Credit for creative work is generally something creators consider desirable both for expressive and pecuniary reasons. 367 It can bolster a creator's reputation, thereby both generating a visible link between creators and their works and providing more professional opportunities for these creators. 368 As analyzed above, memes can lead to financial opportunities for their creators, 369 and for that to happen, memes must be personally attributable in one way or another. The attention-getting campaign against Instagram user FuckJerry for meme attribution, 370 the Kale Salad Instagram account that traces memes to their creators and provides credit, 371 and the Know Your Meme reference site's encyclopedic tracking of memes all point to some hunger to credit memes to a creator.

Attribution is less in tension with meme culture than copyright law in general is, 372 but it still has some disconnects and impracticalities. In particular, the fast pace of copying and spread of memes 373 might make it hard to attribute memes correctly to their creators. There is so much creation, copying, and transformation constantly occurring in meme culture-a culture in which the author is decentered 374 -that it is hard, and maybe impossible, to know how many and which creators to whom to attribute a meme. The cumbersome nature of comprehensive attribution has been noted before with regard to more traditional expressive works, 375 but the extent of this concern is exponentially increased with memes because of the scale and pace of development and creative input. Put another way, the collective nature of authorship with regard to memes makes an attribution regime seem like a folly.

Consider the Texts from Hillary meme that was popular in 2012, in which a photograph of then-Secretary of State Hillary Clinton in an airplane wearing sunglasses texting on her phone was juxtaposed with another photograph of someone to hypothesize a text conversation between them. 377 An example of the meme is shown above. Diane Walker, upset that her photograph of Clinton was being used in the meme, asked the initial meme creators to credit her for the photograph on their website, which they did. 378 Yet even conventional media sources reporting on attribution and other rights in the photograph and meme lamented the difficulties in a broader photographbased meme attribution regime. Time noted, "we always aim to credit photographers, promote their work and link back to the original source, but today there are no clear rules to follow. (Case in point: we don't know where all the photos from Texts from Hillary, used in this gallery, originated.)." 379 As this example shows, as attractive as attribution might be as an alternative regime to copyright law, it might prove too cumbersome and staid a mismatch for meme culture. The attribution to a single author, the photographer of the underlying image, fails to capture the complexity of authorship in the realm of memes, where a work only becomes a meme if someone takes the original image and turns it into a meme and others then copy and transform it.

Another possibility to better align copyright law with meme culture is to create meme-specific copyright rules. One of the most obvious changes would be to copyright duration, which is now typically the author's lifetime plus seventy years. 381 As discussed previously, some judges and scholars have decried what they see as the excessively long duration of copyright for traditional works in opposition to copyright's aims. 382 Yet given the extraordinarily fast pace by which memes become stale-on an order of days, weeks, or months 383 -this critique applies with even greater force to memes. If there is little to no exploitable value to a meme after this short duration, it makes no sense to keep copyright's exclusive rights in effect and prohibit uses of the meme. Therefore, it could be advisable to curtail copyright duration to a maximum of a few months for memes, as a utilitarian theory of copyright aims to key duration to the commercially viable period of a work. 384 This change would correspond better with what copyright aims to achieve: striking a balance between providing incentives to creators to make valuable material in the first instance and allowing society to access and use these materials. 385 Once the incentive to creators becomes near valueless because a work is no longer economically exploitable, it makes little sense to deny society access and use of creators' works. Moreover, by shortening copyright duration, the mismatch between copyright and meme culture is minimized to a more manageable time period. 386 Of course, this assumes that copyright law's exclusive rights create pecuniary value during a meme's productive period, an assumption we think does not generally hold, as discussed above. 387 383 See supra Sections III.F-G. 384 See supra notes 73-76 and accompanying text. We do not necessarily think this reasoning applies with the same force to the image underlying a meme and would not propose curtailed duration for it. 385 See supra Part I. 386 However, shortening the copyright duration flies in the face of current treaty obligations, which require a minimal duration much longer than that suggested here. See Berne Convention for the Protection of Literary and Artistic Works art. 7(1), July 14, 1967, 828 U.N.T.S. 221. 387 See supra Sections III.B-C. The limited opportunities for monetization would suggest that copyright law should not operate during a meme's productive period either, a possibility we explore above in Section III.A.

For similar reasons, it might also make sense to construe copyright scope more narrowly for memes than for other works. Scope can be narrowed in several ways that put copyright law in better correspondence with meme culture, thereby allowing more copying, transformation, and distribution of memes to continue unthreatened by a mismatched copyright law. We raise three of the most salient ways to narrow scope below.

First, as discussed above, the underlying images used in memeswhich would ordinarily be protectable expression-tend to become unprotectable ideas when used in memes. 389 Copyright law ought to take cognizance of this porous boundary between expression and idea in the context of memes rather than reflexively protecting images used in memes against meme creators, copyists, and transformers. Once expression morphs into idea, protecting it can threaten others' free expression and creativity. One way to narrow copyright's scope, then, is to disallow protection for images that are used in memes, at least whenever they are used in memes.

Another way in which copyright law might take cognizance of the characteristics of meme culture is by recognizing that some memes might lack authorship due to the author's decentralization. 390 When that is the case, memes should be denied protection as they are not the requisite "works of authorship." 391 While a meme might represent "original intellectual conceptions" of its creator as doctrinally 388 Community, KNOW YOUR MEME, https://knowyourmeme.com/memes/subcultures/ community [https://perma.cc/7MUK-EJH7]. 389 See supra Section III.E. 390 See supra Section III.I. 391 17 U.S.C. § 102(a).

required for authorship, 392 as a meme spreads, the creator's conceptions can frequently dissipate into nothingness as a meme is absorbed into culture. 393 Copyright law might therefore understand authorship in the context of memes not as something static that is either present or absent, but as something that can be lost as a meme spreads through society, thereby disqualifying copyright protection. 394 Copyright scope may also be narrowed by expanding the fair use doctrine. This could be achieved by discounting commercial use as a rebuttal to fair use for memes, given the fuzzy line between commerciality and noncommerciality in meme culture. 395 Additionally, as Stacey Lantagne, David Tan, Angus Wilson, and others observe, memes are transformative in their capacity to change the meaning of or comment on their underlying images and preceding memes. 396 And a work that is found to be transformative is frequently found to be a fair use of a copyrighted work. 397 [Vol. 97:453

Whether or not copyright law is curtailed for memes, it is critical to address the issue of selective enforcement, as well as the related concern of whether a copyright owner implicitly licenses or abandons copyright in a work to be memed. As discussed above, memes are distinctive in that the underlying image creator as well as subsequent meme creators generally do not assert copyright claims against almost anyone, though they occasionally seek to stop a selective few from using their work for certain purposes, principally those that are commercial or those they find politically unpalatable. 399 On the one hand, this outcome seems to be nothing more than an extension of copyright's grant of control to authors to decide who can and cannot use their works. On the other hand, when almost everyone except a very small select few cannot use a work, there are serious concerns for free speech values.

Before turning to the significant attractions to and worries from allowing such surgically selective enforcement, we first discuss whether any plausible copyright owner in the meme chain might be able to pursue a claim against a subsequent meme creator, distributor, or transformer. That is, by acquiescing to the memeification of their image, does a copyright owner implicitly license their work to anyone, or abandon copyright in the work? Is it reasonable for anyone and everyone to think they are free to use a meme without copyright repercussion? If so, selective enforcement is a nonissue because copyright cannot be enforced in the first place.

As to implied copyright licenses, courts sometimes infer them "when the circumstances . . . demonstrate that the parties intended that the work would be used for a specific purpose." 400 While some circuits have set out (somewhat circumscribed) multifactor tests to assess the existence of a nonexclusive implied license, others have looked to the totality of circumstances. 401 Either way, whether an implied license exists is expectedly murky.

Abandonment is not much clearer. Unsurprisingly, because copyright protects a work of authorship-an abstraction rather than an actual physical object-copyright abandonment is not a straightforward inquiry as compared to, say, a couch left on the sidewalk with a sign indicating it is free to take. 402 Even so, the legal test for copyright abandonment is the same as for chattel: intent to abandon and an overt act demonstrating that intent. 403 An abandoned copyright cannot be owned by someone new; instead, works once protected by that copyright immediately and irrevocably fall into the public domain. 404 The difficulty with abandonment, as Dave Fagundes and Aaron Perzanowski explore, is that the doctrine is hazy, making it hard to know precisely what constitutes abandonment. 405 Courts are also unclear whether a copyright can be partially abandoned: For example, can a copyright owner allow free distribution of derivative works while nevertheless retaining exclusive rights in the realm of commercial distribution? 406 As a general matter in copyright law, these doctrines are imprecise; with respect to memes, these doctrines are completely unsettled. To get a sense of how creators might implicitly license their works or abandon their copyright, consider again the infringement lawsuit brought by Matt Furie, Pepe the Frog's creator, against Infowars. 407 In that case, the defendants claimed that Furie had abandoned his copyright based on public statements they characterized as indicating Furie's joy "about Pepe the Frog becoming a meme," his inspiration "by rampant unauthorized use of the character," his lack of action notwithstanding his awareness of third-party profiting, and his 400 WILLIAM F. PATRY, PATRY ON COPYRIGHT § 5:131 (2021). 401 See 3 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 10.03[a][7] (2021); PATRY, supra note 400, § 5:131. 402 See Dave Fagundes & Aaron Perzanowski, Abandoning Copyright, 62 WM. & MARY L. REV. 487, 492-94 (2020) (attempting to make sense of abandonment doctrine in copyright law). 403 See id. at 493. 404 Cf. Nat'l Comics Publ'ns, Inc. v. Fawcett Publ'ns, Inc., 191 F.2d 594, 599 (2d Cir. 1951) (recognizing that the lack of copyright notice affixation to a published work could thrust that work into the public domain). 405 Fagundes & Perzanowski, supra note 402, at 540-52. 406 But in response to the defendant's rebuttal that such statements amounted to the requisite intent and overt act to abandon any copyright interest in Pepe the Frog, Furie pointed to an interview in Esquire in which he asserted that "Pepe the Frog is copyrighted by me" and made other statements indicating a desire to enforce his copyright. 411 Based on the statements, the district court ruled that there was a dispute of material facts and denied summary judgment on abandonment, 412 after which the case settled. 413 On the impliedlicense defense, the court granted summary judgment to Furie, reasoning that Furie's statements did not constitute an offer to contract and there was no consideration. 414 The court's reasoning indicates that it will be difficult, though sometimes possible, to prove abandonment or implied license. It is also more likely that copyright will be found to have been abandoned or an implied license created with regard to memes rather than the underlying images contained in memes. The circumstances of meme culture lend themselves better to a conclusion that the creator wanted their work to be copied, transformed, and distributed freely, whereas no such understanding might sit in the background for creators of the underlying images used in memes. But with abandonment and implied license murkily available on the right set of facts, we now consider how to analyze situations where copyright remains intact and the owner is engaging in surgical selective enforcement. 408 Furie v. Infowars, LLC, 401 F. Supp. 3d 952, 965 (C.D. Cal. 2019). 409 Id. (alteration in original). 410 Id. 411 Id. at 966. 412 Id. 413 See supra Section II.C.1. 414 Furie, 401 F. Supp. 3d at 968-69. 415 One can see the motivation behind granting copyright owners control to decide who should be allowed to use their work. 416 Just as parents want to ensure their children are left in good hands with a caregiver, authors are frequently protective of their works. Economically, authors want to control who exercises copyright rights to make sure that third parties will not undercut the market for the author's works. 417 Moreover, as a matter of moral rights, authors often want to make sure that third parties are not using their works in ways that run contrary to an author's vision or brand. 418 To the extent that creation is actually spurred through copyright law's incentives, authors might be reluctant to create were they to lose control over who can and cannot license their works. 419 Telling an author that they must allow anyone, including an organization they consider to be a hate or extremist group, to use their work might feel akin to handing over one's baby so they can be indoctrinated and turned evil.

Indeed, recent incidents confirm that creators can feel this way. For example, Matt Furie, in addition to asserting his creative ownership of Pepe, 420 expressed his dismay at the alt-right having adopted Pepe as a symbol in their memes. That Pepe-a "peaceful frogdude"-has been labeled a hate symbol and shared among racists and anti-Semites was, to Furie, "completely insane" and "a nightmare." 421 He continued: "[T]he only thing I can do is see this as an opportunity to speak out against hate. . . . I understand that it's out of my control, but in the end, Pepe is whatever you say he is, and I, the creator, say that Pepe is love." 422 Even further, Furie forewent economic opportunities by ceasing to sell Pepe merchandise to avoid it being worn by groups he found hateful. 423 The copyright owner's interest in controlling who can use their work, however, is not the full story. There are weighty interests on the other side, especially when a copyright owner is engaged in surgical selective enforcement, to which we now turn.

When everyone but a handful of people or groups is permitted to use an image in a meme or copy and transform a meme-something that seems to be an extension of copyright's allowance of selectivity-this creates a situation typically unseen in copyright law: Only a select few are silenced from using a copyrighted work, rather than the historically typical situation in which only a select few are allowed to use a copyrighted work. 425 This circumstance creates worries heretofore generally unseen in copyright law, principally to free speech values.

Once a meme is created and begins to spread virally, many people partaking in meme culture will copy, transform, or distribute the meme. They will use it to participate in digital culture, communicate their take on the meme, seek to fit in with various communities, and try to get attention. 427 There might in fact be no better way to accomplish these communicative and other goals online than through using the meme. Social media platforms, and online culture more broadly, give individuals a megaphone to accomplish their goals, wherein each meme is akin to a personal mini-TED talk. 425 See supra Sections I.F, III.H. 426 Thanks for Coming to My TED Talk, KNOW YOUR MEME, https:// knowyourmeme.com/memes/thanks-for-coming-to-my-ted-talk [https://perma.cc/ZT88-7NV9]. 427 See supra Part II.

Yet at the same time, a very select few might be singled out and challenged under copyright law not to be able to use a meme. Pepe the Frog is perhaps the most prominent example, but there have been other copyright claims brought against figures that are politically unpopular with certain copyright holders, such as Steve King, 429 Donald Trump, various pro-Trump memists, and alt-right figures. 430 In addition, as discussed above, copyright holders in memes and images used in memes have brought suit against a small number of commercial uses of their works. 431 We think that such surgical selective enforcement raises free speech concerns not usually present in copyright law. By invoking copyright to silence only the very few found to be politically (or otherwise) unpalatable from using a meme, copyright law can fall on the wrong side of the balance between free speech and exclusive rights preventing another from speaking.

In the past, the Supreme Court has rejected First Amendment challenges to copyright law's restriction of speech, holding that copyright law already "incorporates its own speech-protective purposes and safeguards." 432 Copyright not only plays a role in "spurring the creation and publication of new expression," 433 but as the Court has explained, there are also "First Amendment protections already embodied" in copyright law. 434 In particular, the Court has identified two built-in features of copyright law that act as First Amendment checks: the idea-expression distinction and the fair use defense. As the Court has explained, "copyright's idea/expression dichotomy 'strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author's expression.'" 435 Furthermore, the fair use defense "allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances." 436 Scholars have reasonably questioned the Court's decision to immunize copyright law from First Amendment scrutiny and instead rely exclusively upon copyright's internal safeguards, an approach not taken with regard to other laws. 437 Either way, if courts deem memes or their underlying images to be protected expression, and find copying is not excusable as fair use or otherwise, 438 this will allow copyright owners to engage in surgically selective enforcement in ways that silence only a few. If memes are the communicative currency-and indeed, for many, they currently are 439 -and because they serve as ideas in critical ways-which ought to be unprotectable by copyright 440 -hyper-targeted enforcement against a select few is problematic to free speech values. Of course, the forbidden few can use other images or memes-assuming those are not held off limits to them too-but that is beside the point when specific memes are the cultural currency. 441 Indeed, in the traditional First Amendment context of government censorship, the Supreme Court explicitly noted that a particular mode of expression might sometimes be necessary to express an idea. As the Court explained in Cohen v. California: "[W]e cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process." 442 All in all, given that copyright law's fundamental assumptions are so mismatched with meme culture, if we assume meme culture is worth preserving, it could prove dangerous to rest on the current norm of copyright nonenforcement. Instead, it would be worth rejiggering copyright law to put it in better accordance with meme culture and free speech values. 441 Cf. Fromer, Information Theory, supra note 63, at 92-96 (explaining how some expression needs to be reused by others to extract the value copyright law is designed to provide). Given that nearly everyone is permitted to use creative works in making and sharing memes, the individuals later asked to desist might have reasonably relied on these works being available to them, providing another reason to worry about surgically selective enforcement.

442 403 U.S. 15, 26 (1971); accord FCC v. Pacifica Found., 438 U.S. 726, 773 (1978) (Brennan, J., dissenting) ("The idea that the content of a message and its potential impact . . . can be divorced from the words that are the vehicle for its expression is transparently fallacious. A given word may have a unique capacity to capsule an idea, evoke an emotion, or conjure up an image.").

As we have shown, memes depart from several of the most basic pillars of copyright theory. 444 But how significant an issue is this departure? If memes are sui generis, a one-off exception to the premises of copyright law, then the problem is relatively contained. But we think this is far from the case. Instead, the concern with memes signals a much broader problem in copyright law and theory.

In our view, memes expose two profound problems in copyright law and theory. First, before the advent of meme culture, scholars and courts had already questioned several basic concepts in copyright law, some of which are the very ones that memes have now pushed to their limits. 445 In Part III, we argued that memes render nonsensical certain pillars of copyright law, such as the idea-expression distinction, the distinction between commercial and noncommercial uses in fair use, and even the conventional notion of the author. 446 Meme culture has now pushed these already problematic copyright principles to a breaking point. Second, rather than a one-off exception to the premises of copyright law, memes are instead a prototype of a new mode of creativity that is emerging in our contemporary digital era. Thus, the problems we have explored with memes go to the core of copyright's role in advancing creativity.

We begin by exploring ways in which traditional works already share certain aspects of meme culture. We then show how memes are part of a broader shift in creativity in digital culture. Finally, we analyze the recent craze for non-fungible tokens (NFTs) as a reaction to memes and to the post-rarity culture that they emblematize.

Traditional works fit copyright's foundational assumptions much better than memes do. 448 Nonetheless, certain aspects of memes that we highlight in this Article were already present-to varying degrees-in some creative works that preceded memes. Here we point out a few ways in which traditional works could be reconsidered through the lens of memes.

Most prominently, copying and repetition, so essential to memes, have always been a part of creativity as evidenced by repeated motifs, themes, and allusions that characterize the literary tradition, 449 the history of art, 450 music, 451 and many other creative practices. 452 For example, we could reimagine the trope of the reclining Venus in art history as a kind of proto-meme: an image on which artists rely because it is immediately recognizable as part of a tradition of previous works, and yet one that artists transform with each individual repetition. Consider the reclining Venus images below, from contemporary to Renaissance: Mickalene Thomas's A Little Taste Outside of Love, 453 which reimagined through the lens of race Manet's Olympia, 454 whose meaning in turn depended on its reference to Titian's Venus of Urbino, 455 which in turn had drawn on Giorgione's Sleeping Venus. 456 Whereas the Renaissance works depicted an idealized erotic goddess, Manet's pictured a prostitute as Venus, prompting the novelist Emile Zola to write, "When our artists give us Venuses, they correct nature, they lie. Edouard Manet asked himself why lie, why not tell the truth; he introduced us to Olympia, this fille of our time, whom you meet on the sidewalks." 457 Mickalene Thomas's contemporary work repeats the trope while changing it again. As the Brooklyn Museum describes the work, Thomas "turns the historic nude on its head and ousts the white European woman from the bed where she often lounges, attended by a black maidservant, in Western art." 458 Titian, Venus of Urbino 461 (left); Giorgione, Sleeping Venus 462 (right) Similarly, in music, certain phrases of expression that have been repeatedly alluded to and transformed can be thought of as memelike. We could characterize snippets of songs in hip hop as analogous to memes-copies that conjure up a tradition of previous works while at the same time altering and advancing that tradition. For example, record producer and acclaimed DJ Mark Ronson has explored the extraordinary persistence of one of the most sampled songs of all time, "La Di Da Di" by Slick Rick & Doug E. Fresh. 463 Ronson shows how it gave birth to a lineage of songs, including music by Snoop Dogg, the Notorious B.I.G., and Miley Cyrus. 464 Some traditional works outside of meme culture also depart from other copyright assumptions in ways that parallel the problems we have explored with memes. For example, musicians have sometimes engaged in surgically selective enforcement of copyright, objecting to 459 Id. 460 Manet, supra note 454. 461 Titian, supra note 455. 462 Giorgione, supra note 456. 463 a song's use by particular politicians while otherwise permitting broad licensing. 465 These disputes, several of which arose for songs that Donald Trump used at political rallies, 466 tended to focus on whether the use of the musical works occurred pursuant to a blanket license agreement. 467 Some musicians have sued directly for copyright infringement in cases that ultimately turned on fair use. 468 For example, Don Henley sued politician Charles DeVore, a Republican candidate for the U.S. Senate in California, for using Henley's songs "The Boys of Summer" and "All She Wants to Do Is Dance" in two political advertisements. 469 Another example of a longstanding art form outside of meme culture that bears some striking similarities to memes is graffiti. 470 Like memes, street art as a genre is ephemeral, fast-moving, and often collaborative; artists frequently expect others to write over their works, rather than to preserve them exactly as is in perpetuity. 471 For example, in a recent case involving 5Pointz, the celebrated New York City graffiti site, the Second Circuit described the ethos of "creative destruction" that characterizes graffiti. 472 As the court explained, while some art at 5Pointz "achieved permanence," most of it "had a short lifespan and was repeatedly painted over." 473 Indeed, street art works sometimes result from frequent modifications (invited or not) among artists who repeatedly alter and overpaint each other's work. 474 In its analysis, the 5Pointz court described another street art site that resulted from a "creative feud between Banksy and rival artist King Robbo, which involved repeated modification and overpainting of each other's work." 475

Despite the shared ways memes and traditional works push against basic copyright law concepts, we also think that memes herald a larger shift that is underway in contemporary creativity. 477 As such, the problems that memes present are of increasing and widespread significance to contemporary creators. New forms of creativity are emerging that share most of the characteristics of memes that we established above as having upended copyright's assumptions-particularly the norms favoring copying and transformation of works, creation of value for underlying works through copying, indirect monetization of works, breakdown of distinction between idea and expression, widespread and accelerated pace of copying, and decentralization of the author. 478 Here we highlight three particularly salient qualities that these new forms of creativity share with memes: visuality, copying technology, and participatory authorship. We then 474 See Adler, Against Moral Rights, supra note 323, at 287 (describing street art as a dialogue of authorship among different authors in which "destruction and creation merge"). 475 Castillo, 950 F.3d at 168 n.5. The court held that temporary artwork that is overpainted may nonetheless achieve recognized stature for purposes of moral rights protections. 476 The Future Is Now, Old Man, KNOW YOUR MEME, https://knowyourmeme.com/ memes/the-future-is-now-old-man [https://perma.cc/EZA7-X55K]. 477 See supra Part III. 478 See supra Part III.

use these characteristics to sketch the contours of a major and emerging shift in contemporary creativity. First, memes exemplify a broader cultural shift in which images have surpassed words as the primary mode of communication. 479 This shift toward the visual, fueled by the pervasive use of smartphone cameras, is evident in the online dominance of primarily visual social media platforms, such as Instagram, Pinterest, Snapchat, TikTok, and YouTube. Even social media platforms like Twitter and Facebook, which did not begin as chiefly visual, have evolved to give greater prominence to visual content. 480 Digital marketers, well aware of this shift, emphasize visual content to exploit the power and speed of visual images. 481 While legal scholars track the explosion of content in the attention economy and the emergence of "cheap speech," 482 they have not considered the qualitative shift toward images and away from words as the primary mode of communication and creativity in our culture, or the implications for First Amendment law of reframing "speech" as increasingly image-based rather than text-based. 483 Second, consider that copying, the foundation of meme culture, 484 has come to play a new and increasingly central role in contemporary creativity across the board. Of course, as we have previously argued, copying has always been a significant building block of creativity. 485 But now in digital culture, the role of copying in creativity has taken on a new urgency. 486 As one of us has previously explored, this newfound centrality of copying stems from two interlocking reasons: In a culture of endless repetition, copying has now become the subject of work as well as a basic tool of how people create. 487 As such, it is not just in memes, but throughout digital culture, that we see authors choosing to create by rummaging through the shards of existing works rather than beginning with a blank slate. 488 Memes in this sense are just the tip of the iceberg.

We are now overwhelmed by images and information. 489 In that regard, it is no wonder that many creative endeavors now rely on existing work as a pool for creativity. This development is abundantly clear in visual art. As one of us has previously argued:

Technology has unleashed both a torrent of images and the capacity to copy them with a click . . . . We used to think of an artist as someone who sat in nature or in his garret, working alone to create something new from whole cloth. . . . [Yet in] a world with a surfeit of images, perhaps the greatest artist is not the one who makes an image but the one who knows which image to take: to sort through the endless sea of images in which we are now drowning and choose the one that will float. 490 In his 2013 book After Art, critic David Joselit explains that "contemporary art marginalizes the production of content in favor of producing new formats for existing images." 491 Moreover, artists have always tried to depict our world, and our world now looks like Google Images. 492 The digital screen and its endless play of disconnected images is our new daily landscape, as Giverny once was for Monet.

Furthermore, in the digital era, copying has become a fundamental tool of how people create. 493 Let's return to hip hop. 494 Mark Ronson, who explores the history of sampling, describes the pivotal role copying technology played in the birth of this art form, explaining that "all of a sudden [artists] found themselves in possession of the technology" to create music from past recordings. 495 Ronson expounds on this, saying:

[T]hat's what the past 30 years of music has been. That's the major thread. See, 30 years ago, you had the first digital samplers, and they changed everything overnight. All of a sudden, artists could sample from anything and everything that came before them, from a snare drum from the Funky Meters, to a Ron Carter bassline, the theme to "The Price Is Right." 496 In short, technology unleashed a new means for creativity. It is now a basic tool, as musical instruments are to music or as paintbrushes are to art. 497 And it has leveled the playing field for creativity. 498 Meme culture is a prime example of a genre in which technology makes it so easy to create. If you don't believe us, go to an online meme generator like imgflip and try making your own. 499 A third hallmark of contemporary creativity is its reliance on diffuse, participatory authorship. In an older model of creativity, we pictured an identifiable author who unleashed a discrete and final work. But in the new meme-like participatory model of creativity, existing works are always in flux, subject to reuse and transformation by others. Rather than a finished product, the work is now a template that multiple authors use, copy, and transform in an ongoing conversation that produces new and collective works in dialogue with one another.

With these insights on visuality, copying technology, the participatory creativity of works, and the additional characteristics possessed by memes that upend copyright's assumptions, we now turn to a range of examples of this new model of meme-like creativity.

One category of creative works that shares several meme attributes is dance as created, copied, and shared on the TikTok platform. Examples range from the fast-paced Renegade dance (created by an Atlanta teenager, set to K Camp's song "Lottery" and copied and transformed over 29.7 million times) to the Number One Baby dance (set to a hip hop song by Young Thug and Future and copied over 27 million times) to the Cannibal dance (set to a ten-year old pop song by Kesha and copied over 9 million times). 500 Some popular dances (often called "dance challenges," 501 a term that itself provokes memetic spreading on TikTok) are based on children's songs, K-pop, and even Vietnamese music about the countryside. 502 Choreographers analyze how TikTok has created a new dance genre because the moves-given the video frame-tend to focus on the body above the legs (often featuring finger guns, hip wiggles, chest bangs, and dice rolls), are fairly energetic, and must be easy to learn if they want a chance at viral success. 503 As one dancer explains, despite sometimes appearing like a homogeneous style, these dances in fact "have roots in hip-hop but also pull from so many other styles like belly dancing, dancehall dance moves, [and] jazz funk." 504 That is, these dance videos are frequently in dialogue with one another. Moreover, as one analyst explains, "TikTok dances are often recorded by creators alone, with the only social aspect being the imagin[ed] connection between the dancer and their future phone-scrolling viewers." 505 As these dance videos are copied and transformed, often at a brisk pace, they also frequently are stripped of their context and creator, making attri- 501 Moore & Haasch, supra note 500. 502 Id.; Cat Zhang, The Latest TikTok Trend Is . . . Vietnamese Music About the Countryside?, PITCHFORK (Aug. 5, 2021), https://pitchfork.com/thepitch/the-latest-tiktok-trend-is-vietnamese-music-about-the-countryside [https://perma.cc/C8BQ-3F9C]. 503 See Charlotte Barnett, How the Obsession with TikTok Dances Spilled out of the App and into the World, OBSERVER (Jan. 29, 2020), https://observer.com/2020/01/tiktok-dance-moves-choreography-history [https://perma.cc/8FAW-CQXB] (discussing TikTok dance choreography that focuses on the upper body and simplistic, easy-to-learn movements); Siobhan Burke, What Makes a TikTok Dance Go Viral?, DANCE MAG. (Dec. 27, 2020), https://www.dancemagazine.com/popular-tiktok-dances-2649519038.html [https://perma.cc/HTV6-Q7ST] (noting that simplistic dances and exaggerated facial expressions contribute to a TikTok dance's popularity); Koh Ewe, Yes, TikTok Dances All Look the Same. Here's Why., VICE (Apr. 14, 2021), https://www.vice.com/en/article/ 4avgmm/why-tiktok-dances-look-same [https://perma.cc/3ERJ-H5GF] (observing the simplicity, energy, and personality common to trendy TikTok dances). 504 Ewe, supra note 503 (quoting dancer Rhiam Bichri). 505 Id. (quoting dance instructor Nika Kermani).

bution harder than in traditional spaces. 506 Even so, popular TikTokers can make substantial money not directly from their creative content but from being paid to post sponsored content. 507 As another illustration of the range of meme-like creativity currently flourishing, consider the Broadway-like musicals being created online in a fashion that is collaborative, iterative, and viral. 508 Perhaps the most successful has been Ratatouille the Musical, based on the 2007 Disney-Pixar animated film Ratatouille about Remy, a Parisian rat who dreams of becoming a chef. The crowdsourced musical version began on TikTok with Le Festin, a song from the Ratatouille movie soundtrack, frequently used as background in users' cooking videos. 509 A parody version of the song-featuring nonsensical 506 See Tait, supra note 500 (noting that the format of TikTok makes it often hard to trace the original creator of a viral dance). This has led to controversy, as dances of Black creators are often copied and popularized by white TikTok figures and credit is lost along the way. See J. Clara Chan, Black TikTok Creators Grapple with How Far to Take Strike: "Why Should We Have to Leave?," HOLLYWOOD REP. (July 28, 2021), https:// www.hollywoodreporter.com/business/digital/tiktok-strike-1234988427 [https://perma.cc/ HDT3-5NQJ]; Tait, supra note 500; Hannah Yasharoff, Jimmy Fallon Addresses His TikTok Dance Segment with Addison Rae. Here's Why It Sparked Backlash, USA TODAY (Mar. 30, 2021), https://www.usatoday.com/story/entertainment/tv/2021/03/30/tiktok-dances-why-addison-rae-jimmy-fallon-clip-sparked-backlash/7058920002 [https://perma.cc/ PK8D-CUUA]. In response, a movement to register copyright in the choreography is underway. Paige Skinner, The TikToker Who Created the Viral "Savage" Dance Is Copyrighting the Moves, BUZZFEED NEWS (Aug. 2, 2021), https://www.buzzfeednews.com/ article/paigeskinner/savage-dance-copyrighted [https://perma.cc/BL7T-578Y]. Whether these actions are merely a way to claim official credit or a desire to formally enforce exclusive rights is unclear. 507 Tait, supra note 500. One difference between memes, which proliferate without underlying payment to or permission from their creators, and TikTok content is that TikTok pays licensing fees for the songs underlying users' dance videos. Amy Johnson, TikTok Music & Royalties: How Does It Work?, AUDIOSOCKET, https:// www.audiosocket.com/social-media-guides/tiktok-music-royalties-how-does-it-work [https://perma.cc/SX9U-P3MF]. Not all social media platforms pay for licenses. That TikTok finds it worthwhile to do so provides another model of how meme culture could work. This model also suggests the need for further analysis, especially because TikTok might be paying for licenses to avoid copyright claims-even ones that should fail-to keep the platform successful. It is possible that the new creativity could be inhibited were TikTok to stop its licensing practice. 508 See Laura Wheatman Hill, What's The Deal With All These TikTok Musicals?, BETCHES (Feb. 1, 2021), https://betches.com/whats-the-deal-with-all-these-tiktok-musicals [https://perma.cc/S4A6-T3B6] (identifying TikTok musicals, such as Grocery Store: The Musical and Ratatouille the TikTok musical, and asking whether this phenomenon is "the future of content creation"); see, e.g., Jeff Lunden, Now Playing on TikTok: 'Bridgerton' The Musical, ALL THINGS CONSIDERED (Feb. 13, 2021, 5:08 PM), https://www.npr.org/ 2021/02/13/967175912/now-playing-on-tiktok-bridgerton-the-musical [https://perma.cc/ GPG9-ZW2A] (explaining how two singer-songwriters wrote and posted songs about the Netflix show Bridgerton that went viral on TikTok). 509 French-sounding lyrics set to Le Festin's tune-followed and was debuted as background music to a TikTok video that depicted what one news story described as "self-consciously gross or bad cooking, or really any sort of weird lifestyle-hack fails." 510 Subsequently (and following up on her homages to other cartoon characters, including Jar Jar Binks and Winnie the Pooh), TikTok user Em Jaccs shared an ode to Remy that she had written and performed, in which she had modified her voice to sound like a mouse. 511 TikTok user Daniel Mertzlufft then adapted the song into an all-out Broadway number with arrangement and orchestration. 512 This song was viewed over one million times and used in thousands of others' TikTok videos, including videos that made a set design for this "musical," created choreography, made a musical playbill, designed makeup for the characters, and performed a cast party. 513 Others built further on the song, some using TikTok's duet feature to voice lyrics they wrote for other characters in the movie to sing along with Remy. 514 TikTok users then added new songs corresponding to scenes throughout the movie, often with numerous songs per scene, in many styles including a Lin-Manuel Miranda parody song. 515 Other TikTok users created songs that went beyond the film, such as a song adopting the view of Remy's mother, a character that does not appear in the movie. 516 Then Broadway actors began performing these songs online. 517 Eventually, this led to a virtual performance of a musical culled from the TikTok songs and other videos by Broadway performers such as Tituss Burgess, Wayne Brady, and Adam Lambert, which raised over $2 million for charity 518 and was reviewed in traditional media outlets like the Chicago Tribune. 519 Not only did Disney not use copyright to challenge these works, but it supported the charity performance. 520 In these new forms of online creativity, users also have revived and transformed centuries-old forms of work. At the end of 2020, Scottish postman Nathan Evans posted on TikTok his rendition of Wellerman, a nineteenth-century sea shanty sung by merchant seamen as they worked to distract themselves from labor. 521 Sea shanties are folk songs that typically have lyrics about whaling, winds, and harpoons. 522 In a few weeks, Evans's video was viewed over nine million times and provoked an outpouring of creativity: TikTok duets using his and others' performances of sea shanties, remixes of these sea shanties, newly composed sea shanties, reactions to the revival of such an old form of music, memes about sea shanties, Kermit the Frog performing a sea shanty, and even an electronic dance music version of this new shanty genre. 523 Famous musicians got involved, with Sir Andrew Lloyd Webber layering his piano playing atop, and boy bands harmonizing with, Evans's performance. 524 Like TikTok dances, these songs are suited to the platform. As one news report explains, "[t]hey're songs with simple, blunt rhythms, meant to be easy to learn and easy to sing along with . . . . [T]he engine of the song is in the repeating chorus that everyone sings together . . . . They are unifying, survivalist songs, designed to transform a huge group of people into one collective body." 525 Another analysis elaborated, "[o]n a technical level, shanties seem perfectly primed for TikTok. They're a call-and-response genre on a call-andresponse app. . . . And, like memes, the shanty is an art form that seemingly belongs to no one, comes from nowhere, exists to be replicated." 526 TikTok participants commented how much they felt it brought them together during a pandemic and gave a sense of adventure, as if they were on a collective seafaring voyage rather than stuck at home alone. 527 Evans, himself, got so much positive attention from launching this trend that he was signed to the Polydor record label and quit his job as a postman. 528 While much of this creativity is taking place on TikTok-a current dominant social media platform-it is all over just about every form of social media. On Instagram, users participate in challenges in which, according to one guide explanation, "someone on Instagram sets a theme and asks people to share photos [or videos] on that theme using a particular hashtag." 529 Examples include #floralfriday competition (a weekly challenge to share photos of flowers or gardens), #INKtober (a challenge to draw and post an ink drawing each of the thirty-one days of October), and #pillowchallenge (a challenge where, as explained by one news article, "participants fashion dresses out of their bedding by belting a pillow at the waist"). 530 Pinterest has users curating and sharing theme boards of everything from their favorite pink dresses to interior design to architecture details and wedding photos. 531 Tumblr and Medium provide ways for users to create blogs or stories filled with text, audio, photos, videos, and more and for others to follow, copy, and engage with those who share their interests. 532 Twitch has users streaming aspects of their lives, including video game play, to others watching and interacting in real time. 533 DeviantArt is a social network set up to share user artwork. 534 Wattpad is a platform where users can publish their writing to be read by its ninety million readers and can create social communities around stories; it also provides a spot for fan fiction and is a launchpad for publication or movie adaptation. 535 Each of these social media platforms has built-in mechanisms to copy and share others' work and to engage with it, underscoring the recognized value of copying and dialogue among works.

These examples demonstrate the pervasiveness of the new mode of creativity-much as with memes-particularly among visual works, which have become a dominant form of expression. Copying and transformation of works is no longer condemned but celebrated. Copying happens easily with a click of a button or two. And it creates value for the underlying works being copied. The subsequent creators can profit, but usually only do so by indirect monetization. Reuse of expression can turn what was once only expression into idea. Copying proceeds at a frenetic scale and pace and can lead works to become stale at previously unforeseen rates. These works, as they are passed around, become decentered from their authors. And the works-by building on, communicating with, and drawing from one another-are interwoven into a grand conversation and communal cultural experience. As with memes, copyright law is a misfit for this new creativity. 536 535 See WATTPAD, https://www.wattpad.com [https://perma.cc/S32B-8327] (homepage of Wattpad, describing itself as "[t]he world's most-loved social storytelling platform"); see also Julia Alexander, From Fanfiction to Netflix Hits, VERGE, https://www.theverge.com/ 2021/1/14/22215052/wattpad-authors-fanfiction-netflix-hulu-streaming-movies-romcomteen-drama [https://perma.cc/32UW-GZXE] (describing how Wattpad has been the launchpad for movie adaptations). 536 See supra Part III.

The extraordinary spread of meme-like creativity helps shed light on another emerging cultural phenomenon. Consider the recent market craze for NFTs that has captured public attention due to the astonishingly high prices NFTs command. 538 As a New York magazine article exploring the NFT hype defined it, an NFT is "a digital asset whose uniqueness, and therefore its value, is stored cryptographically on the digital ledger known as the blockchain." 539 Though NFTs, as unique digital identifiers, can be used to sell anything, they are commonly used to sell tokens for digital images or clips, even though these images or clips are themselves freely available and copyable. 540 Here we offer a novel interpretation: We see the craze for NFTs as a direct reaction to meme culture and what it represents. 541 As we have argued, memes encapsulate a distinctly modern condition of creativity in a world of unbounded copying. Memes prolif-erate and mutate without limit and without anyone in control. Everyone is an author; every image is up for grabs. There is no original, no owner, no beginning, no end, and no moment of stasis. But in contrast to the limitless copies of meme culture, the NFT now manufactures a "unique" original. Instead of the endless flux of memes, the NFT artificially stops time. Unlike authorless and ownerless memes, the NFT privatizes the image. Whereas memes are free and only indirectly monetizable (if at all), the NFT creates a product to sell. No wonder some of the most famous and recognizable meme creators or subjects have cashed in. The subject of the famous Disaster Girl meme 542 just sold an NFT of her meme for $500,000. 543 In short, we see the market for NFTs as a reaction against the modern conditions of endless copying that memes emblematize. 544 NFTs represent an attempt to cling to the concepts of uniqueness, originality, and authenticity in a world where those concepts no longer make sense. 545 Whereas philosopher Walter Benjamin once hoped that the technology of reproduction would destroy the aura of the unique work of art, the NFT does the opposite: It manufactures ersatz uniqueness to counteract a world of limitless reproduction. 546 Well before the advent of NFTs, Professor Barton Beebe described how intellectual property law created artificial scarcity in our post-rarity world. 547 Although he did not address meme culture, Beebe discussed the proliferation of copying technology and the responsive use of intellectual property law "to re-enchant copies, to render them as somehow unique or authentic" in a culture of copying. 548 But unlike Beebe's vision in which intellectual property law plays a role in creating false rarity, what we see with NFTs is a false rarity created and monetized strictly through the market, without any operation of law. As is increasingly the case with digital culture, social norms and the market itself have superseded the role previously played by law, at least for the moment. 549 As we have seen, the misfit between memes and central tenets of copyright law signals a much larger problem for copyright law and theory. While traditional works already share certain features of memes, ultimately memes encapsulate a widespread emergence of a new mode of creativity in digital culture. Even contrary trends in digital culture, such as the NFT, demonstrate how pervasive meme culture has become.

CONCLUSION 550 This Article sets out how memes upend so many of copyright law's fundamental assumptions on creativity, commercialization, and distribution: that creativity should typically happen without copying, that copying is harmful, that creators directly profit from exercising copyright's exclusive rights, that idea and expression are distinct categories, that copyright duration ought to be long to correspond to the longtime viability of works, that copyright holders should be able to select an exclusive few to exploit their works, and that the author is central. Copyright law is therefore a poor fit for this form of creativity, exemplified by memes but now characterizing a vibrant range of creativity, particularly online. 549 See Adler & Fromer, supra note 47, at 1457 (noting the recent trend of those holding copyrights to seek relief outside of traditional legal systems); see also supra Sections II.C, IV.A. 550 Path Split in Forest Meme Generator, IMGFLIP, https://imgflip.com/memegenerator/ 35673474/Path-split-in-forest [https://perma.cc/4Q9A-6NLT].