Copyright Fair Use and the Digital Carnivalesque: Towards A New Lexicon of Transformative Internet Memes
David Tan and Angus Wilson
Article

  The full text of this Article may be found here.

31 Fordham Intell. Prop. Media & Ent. L.J. 864 (2021).

Article by David Tan* and Angus Wilson**

ABSTRACT

[T]

he influence of social media in the 21st century has led to new social norms of behavior with individuals presenting themselves to others, whether physically or virtually, on various social media platforms. As a result, these new trends have led recent society to be characterized as a “presentational cultural regime” and a “specular economy.” In a Bakhtinian digital carnivalesque, internet memes present a feast of challenges to exceptions and limitations in copyright law. Memes encompass a wide range of expression about the human experience, while also existing as a playful mode of culturally permissible expression in online social communications rather than as self-contained and specific categories such as parody or satire. This Article analyzes how, and to what extent, internet memes should be protected by the fair use doctrine. It concludes that as the digital intercommunicative persona construction becomes pandemic in the contemporary moment, more and more images will inevitably become the raw materials in the online making and remaking of the public self in an anti-hierarchical networked community. Copyright law is slowly and belatedly learning a new cultural vocabulary that it needs to translate into a legal lexicon relevant to judges and lawmakers.

* Professor and Vice Dean (Academic Affairs), Faculty of Law, National University of Singapore; Head (Intellectual Property), E.W. Barker Centre for Law & Business; Deputy Director, Centre for Technology, Robotics, Artificial Intelligence & the Law, National University of Singapore.

** Adjunct Research Fellow, E.W. Barker Centre for Law & Business, Faculty of Law, National University of Singapore.