Who Owns a Meme?

A legal battle over Fortnite raises many questions without clear answers

Luke Winkie

Mar 13, 2019·5 min read

There is no legal precedent for Backpack Kid, aka Russell Horning, the teenager who turned heads as the backup dancer du jour in a Katy Perry Saturday Night Live performance back in 2017. His mesmeric rhythm and aloof expression immediately went viral, and today we call his dance “the floss.”

The floss is everywhere. Ted Danson did it. Mark Ingram did it. A 96-year old World War II veteran did it. And it’s in Fortnite, where a wide range of emotes, or character actions, are sold by developer Epic Games. Fortnite characters can also dance using the “fresh” emote, which directly cribs from the “Carlton dance” Alfonso Ribeiro made famous on the Fresh Prince of Bel-Air, or “swipe it,” a copy of 2 Milly’s Milly Rock dance.

None of the creators of these dances see a cent from the game’s in-app purchases, which, in aggregate, reportedly led Epic to $1 billion in revenue midway through last year. So, naturally, the creators sued. And quickly hit a brick wall.

Three months after filing those suits, Horning, 2 Milly, and Ribiero each temporarily dropped their cases this week after the Supreme Court ruled that plaintiffs can’t sue for copyright infringement until they have officially applied, and received, a copyright license on their dances from the U.S. Copyright Office.

“With the advent of technology, and the advent of social media, [cases like this] are going to become more common.”

That may be trickier than it sounds. Copyright law was conceived “to promote the progress of science and useful arts.” The idea that, someday, a company could sell short dance movements — memes, essentially — adopted from short-form digital video would have been difficult to imagine when modern copyright laws were written more than 40 years ago.

“I’m pretty sure that the legislators didn’t think, ‘Oh, years from now there will be this thing called the internet, where someone can create a meme that produces copyrighted material in this matter,” says Merlyne Jean-Louis, a business and entertainment lawyer based in New York. “The law is reactionary. With the advent of technology, and the advent of social media, [cases like this] are going to become more common.”

By a strict reading of the law, the chances that Horning was ever going to collect residuals on the floss were slim. Still, the Fortnite dance lawsuits could be read as an effort to finally untangle property rights in the digital age. The history and norms of the internet are defined by a lack of jurisprudence when it comes to respecting each other’s ownership. Nobody has ever paid a tax for reposting a meme.

But in 2019, with the scrutiny that these cases have summoned, it looks like we’re on the road to an insurrection. Consider FuckJerry, aka Elliot Tebele, who for years has cribbed funny tweets from comedians while conveniently leaving out the names of the authors. Powerful entertainers and writers — people like Patton Oswalt and Vulture comedy editor Megh Wright — were moved to speak out against him earlier this year. Last month, FuckJerry apologized and promised to give creators proper credit moving forward, while also echoing a familiar refrain.

“In the early days of FuckJerry, there were not well-established norms for reposting and crediting other users’ content, especially in meme culture,” Tebele wrote in his Medium post. “Instagram was still a new medium at the time, and I simply didn’t give any thought to the idea that reposting content could be damaging in any way.”

“No well-established norms for reposting.” Gabriel Gundacker knows that attitude well. He landed one of the most viral moments of 2018 when he posted a deliriously weird video of himself singing about the cast of Smallfoot, a middling animated flick. (The song was called “Zendaya Is Meechee.”) There are dozens of T-shirts and coffee mugs bobbing around the internet emblazoned with his meme, with absolutely none of the residuals kicking back his way.

“The futility can be exhausting,” Gundacker tells OneZero. “Right now, a video I did on Tumblr a few years ago about the movie Holes is currently performing very well on some stranger’s meme page without any credit to me. It’s sad, but I don’t feel like spamming my current followers about trying to get this guy to edit his Instagram caption to include my handle. Asking someone to stop following a funny, faceless account that makes them laugh because of a complex moral obligation to uncredited creators is a lot to ask.”

Gundacker has taken some steps to solidify his content rights. He signed up with a service called Collab, which automatically scans YouTube to see if anyone has uploaded his videos without his consent. The service automatically finds any pirates and syndicates videos on compilation channels to drive revenue, which means that every month, Gundacker gets a stipend in his bank account. It’s like how Jerry Seinfeld has been living off royalties from his sitcom, but on a much, much, much smaller scale.

“It’s always a pleasant surprise, getting residual checks for short, dumb internet videos I made,” Gundacker says.

Copyright can only do so much to protect creators anyway. (Aquaman isn’t even out on home video yet, but if you wanted to, you could grab a 4K rip from a torrent that dropped last week.) Backpack Kid and Gabriel Gundacker are wrestling with the same fundamental problem: how to capitalize in an era when “art” can exist in the span of seconds and replicate across the internet in an instant.

“Asking someone to stop following a funny, faceless account that makes them laugh because of a complex moral obligation to uncredited creators is a lot to ask.”

“People a quarter of my age have figured out ways to monetize their talents that aren’t necessarily reliant on copyright,” Jonathan Band, a law professor at Georgetown specializing in intellectual property and internet regulation, tells OneZero. “In the olden days, you created content, you sold content, and that’s how you made your money. Now you create content and find other ways to make your money.”

“Most people don’t see the value of their work until it becomes viral. If you have the foresight in advance to see the value in your work, you should register it [at the Copyright Office] as soon as possible,” Jean-Louis adds.

Consider the first generation of memers: The Numa Numa kid, the Star Wars kid — each pillaged for years without any recourse. A complete disregard of creator ownership may have been etched into the early days of internet culture, but it doesn’t have to stay that way.

“Until the people making this internet content are respected as entertainers, the general public won’t really care about them getting their just payments,” Gundacker says. “But as young people start to grow up with the people on their phone along with the ones on television, hopefully respect for those phone people becomes a given.”