Much has been made over the past week or so about Instagram star, the Fat Jewish, the famed persona of self-proclaimed “Renaissance man,” Josh Ostrovsky, and his practice of “consistently stealing jokes or deliberately not crediting people for content he posted to his account,” as Vulture put it. One thing that has not been discussed at length is the legal implications of Ostrovsky’s livelihood, joke and meme theft. His social media tactic appears to consist primarily of stealing (or as he rather conveniently puts it, “commenting on”) others’ copyrighted material and monetizing it, thereby allowing himself to build a massive internet presence and spin that off into other ventures. So, here is what we can say about the legality (or maybe better yet, the potential illegality) of Ostrovsky’s fraudulent operations …
[Not in the mood for a legal lesson? Skip down to the paragraph starting with: "Had you ever heard of Josh Ostrovsky prior to a few years ago?"]
In order to consider the legality (or lack thereof) of Ostrovsky’s business, we have to define memes and understand if and where they fit into the scheme of legal protections. In lieu of giving you a formal definition, memes are the photos and/or video clips – and the jokes/captions that are over superimposed over them – we see online that go viral. Some easy examples are grumpy cat, Doge the menswear Shiba Inu, the honey badger, jokes about Tinder or photos of Kanye West’s face or of Mike Tyson with a tiger on a leash – you get where I’m going with this.
The internet has certainly complicated the most traditional notions of intellectual property ("IP"), the field of law that encompasses creations of the mind, such as inventions; literary and artistic works; designs; and brand names and images used in commerce. IP commonly refers to trademarks, patents and copyright; the latter of which is the most relevant for us here. Copyright law provides protection for "original works of authorship, fixed in a tangible medium” (note: the bar for originality is low and fixation just means that the work is embodied in a format that allows it to be seen or copied by others – the novel must be written down, the song must be recorded, etc.). Under the doctrine of copyright, the creator of an original work has the exclusive right to make and sell copies of his works, the right to create derivative works, and the right to perform or display his works publicly – subject, of course, to durational limits.
This all seems pretty straightforward, except that as I noted above, the internet has complicated things. Images, for instance, are shared very widely (sometimes without proper credit to the original creator), making the creator of the original work less obvious, at times. As such, it is worth asking, before we go any further: Are jokes protected by copyright law and are memes protectable by copyright law?
When it comes to jokes, there is relatively little case law focusing on their protection under the doctrine of copyright, but there are some things we know for sure. For instance, it is likely that jokes are protectable (though they probably enjoy only a “thin” copyright against close copies). We know that in order to receive copyright protection, the jokes must be original; you cannot claim protection over a minor variation of someone else's joke. Jokes must also be fixed in a tangible medium. In this way, the internet, particularly social media sites, makes it easier for comedians (or anyone, for that matter) to protect their jokes, as they fix them in a tangible medium as soon as they tweet them or post them to Instagram.
When it comes to posting others’ original jokes online, Twitter made headlines earlier this summer for its practice of removing tweets that contain copyright infringing jokes. As documented by @PlagiarismBad, it is possible for the creator of an original joke, which has subsequently been copied and tweeted by another Twitter user, to file a Digital Millennium Copyright Act (DMCA) takedown notice with Twitter to have the tweets containing the copied joke removed. [The DMCA is the law through which owners of copyrighted materials may file a request to have those materials removed from websites]. Once Twitter reviews your complaint, it may replace the offending tweet with the following: “This tweet from [insert joke stealer’s Twitter handle here] has been withheld in response to a report from the copyright holder." This could be helpful for the Fat Jew’s victims on both Twitter and Instagram.
What about memes: are they protectable by copyright law? That answer is a very unhelpful, “it depends.” However, if we assume that a meme is original, then it is safe to say that it is likely copyrightable. Nyan Cat, an animated YouTube video, uploaded in April 2011, was registered with the U.S. Copyright Office. Similarly, Keyboard Cat, a video from 1984 of a cat wearing a blue shirt and playing an electronic keyboard, was uploaded to YouTube in 2007, and registered with the U.S. Copyright Office.
Surprisingly or not, we have seen lawsuits stemming from the unauthorized usage of memes. Most notably, Charles Schmidt and Christopher Orlando Torres, the respective creators of the Keyboard Cat and Nyan Cat memes, filed suit in 2013 against 5th Cell Media and Warner Bros. for copyright infringement and trademark infringement. Turns out, the defendants used the cat characters without the creators’ permission in video game, Scribblenauts, and its sequels.
The case was settled out of court, with Warner Bros. officially licensing the two cat memes for use in the games (aka paying the creators a monetary sum in exchange for permission to use the memes in its video games). In connection with the lawsuit, Torres, the creator of Nyan Cat stated: “I have no issues with Nyan Cat being enjoyed by millions of fans as a meme, and I have never tried to prevent people from making creative uses of it that contribute artistically and are not for profit.” (This is where things become problematic for the Fat Jew, but we will come back to this point very shortly).
Torres’s comment is an interesting one because it sheds light on how memes work; in order to be successful, they must be shared. This sets the stage for the complexity of the situation. While Torres has chosen not to go after the vast majority of people who have shared his Nyan Cat meme, he could. This is because he has, as the copyright owner, the exclusive right to make and sell copies of his work, the right to create derivative works based on his underlying work, and the right to perform or display his work publicly. So, if you share his meme without his authorization (and absent a valid defense), you are infringing his copyright. Period. It does not matter, from a copyright perspective, that he put it online. It does not matter, from a copyright perspective, that millions of people may have shared it before you. Just because a photo or video has been posted online, e.g., on Twitter, Instagram or YouTube, does not mean that it can thereafter be reproduced by someone other than the copyright holder without having legal ramifications.
Lastly, it also does not matter – for memes or jokes – whether the stealing party credits the original source. Whether a joke or meme thief properly credits the original source is immaterial in terms of copyright because the copyright infringement is complete once the protected material is published, sold, etc. without the permission of the original creator. Crediting the source is the nice thing to do. Crediting the source is the ethical thing to do. But in terms of copyright infringement (as distinct from plagiarism), crediting the source is pretty much irrelevant. With this in mind, just because Torres chose not to sue all of the people that used/reproduced the Nyan Cat meme in a non-commercial way, that does not mean that they were not operating illegally (though they do, however, have a better argument under the fair use defense than those who were using Torres’s meme for profit.)
So, what is fair use? Unless an exception applies to your unauthorized use of another’s copyrighted material, your use amounts to copyright infringement. This is true even if you add something new to the existing copyright, as that use would amount to infringement by way of the creation of a derivative work. However, one of the most common exceptions is “fair use,” which is a defense to copyright infringement that permits you to use another’s existing copyrighted material to create something new.
To some extent, this defense may be something that the Fat Jew can claim. Although he does not create the memes or the jokes that he posts, if he were faced with a copyright infringement lawsuit, he would likely argue that he contributes something new to these existing memes by way of the caption he adds – and he would almost certainly argue that his comments drive the success of his Instagram account. I’m not sure if his addition of a caption to someone else’s meme or joke would amount to fair use. In fact, it is notoriously difficult to determine if a specific use of another’s copyright would be fair use. What we do know is that there are four factors that courts use to determine whether a use of a copyrighted work is fair: 1) the purpose and character of the use; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4) the effect of the use upon the potential market for, or value of, the copyrighted work. [The truly eager amongst us should also see the Prince v. Cariou decision for a further challenge. As a result of the Second Circuit's decision in that case, the chances of a court finding fair use are more likely. In that case, in which the court found that well-known appropriation artist Richard Prince had succeeded in "transforming" a majority of the the prior works of photographer Patrick Caribou (namely as a result of the "entirely different aesthetic" created by Prince), as to not amount to copyright infringement.]
From this test we can tell with certainty that the “amount and substantiality” of the portion of the copyrighted memes or jokes that is used matters. This is not a good thing for the Fat Jew, since he tends to use a meme or joke in its entirety. We also know that copyrighted works (the memes and jokes, here) that are used without authorization for commercial purposes are much less frequently considered to be “fair” than ones used for non-commercial purposes. As such, commercial uses (those for the purpose of turning a profit) tend to more likely lead to a finding of copyright infringement, and this is where the Fat Jew situation is particularly interesting. Up until now, commercial use has typically been viewed as directly resulting in profit. However, the Fat Jew’s use of memes is thought provoking (in a legal sense) because while his Instagram is not directly used to make a profit, it seems very, very heavily tied to his ability to profit.
Had you ever heard of Josh Ostrovsky prior to a few years ago – aka before he launched his immensely popular social media accounts? The answer is, No! And that is because his social media presence has allowed him to enter into the various business deals that he currently has. Ostrovsky recently shed light on the controversy by speaking to Vulture – an interview in which he essentially tries to talk his way out of this mess, to justify not crediting any of his sources for the past 3 years, and to establish that his Instagram, which boasts 5.7 million followers, is not the sole source of his fame. Don’t let him fool you.
Ostrovsky (and his team) would obviously like – for PR reasons now that he’s been busted and is being publicly shamed – to create the impression that his social media accounts (which almost exclusively use others’ memes and jokes) are not the sole source of his fame. I think we can all see that this is a flawed theory. As such, we can reason that but for the Fat Jew’s Instagram account and the fame he has achieved as a result of it, he would not be profiting as extensively as he is. Without his Instagram fame, it seems rather unlikely that he would have landed a book deal, a deal with Creative Artists Agency, a modeling contract, or any of his numerous brand sponsorships reportedly valued at up to $6,000 a post, per Rolling Stone.
The question is thus: can we fit his indirect profits into the commercial use prong of the fair use test? Maybe. That’s something the courts will have to decide. But it certainly is worth noting that as traditional uses of copyright evolve, so, too, must the law that governs it. With this in mind, it doesn’t seem like a stretch for courts to consider such indirect profits. And if they were to consider this, it certainly would be downright damning in terms of Ostrovsky’s chance of asserting the fair use argument.
But back to the Vulture interview. An excerpt that is rather telling, in my opinion, is one in which Ostrovsky talks about his interns’ duties and their collective failure to provide credit for any of the many, many, many memes and jokes posted on his account up until this point: “I've got so many other things that I need [the interns] to do [other than finding sources for the memes/jokes]. It just didn't seem like something that was extremely dire.” Now, contrast this with the intellectual property rights Ostrovsky has reserved for himself. His website is complete with a copyright line, reserving “all rights” because he doesn’t want you to copy him. He displays a trademark symbol next to his dog’s name on his dog’s Instagram account: “TOAST MEETS WORLD™” because he doesn’t want you to copy him. And with Babe Walker, Ostrovsky’s partner in the White Girl Rosé venture, they filed to trademark the “White Girl” name in May 2015 via Walker’s company Little Body LLC. And please do note that idea wasn’t even terribly original. Global Beverage Corp. filed to register the “White Girl” in the same class of goods (alcoholoic beverages) 10 years prior - see the proof below. [This guy REALLY is devoid of creativity]. The moral here is that Ostrovsky appears to consistently disregard the intellectual property rights of others while reaping the benefits of intellectual property rights for himself and his ventures in order to profit. In short: he’s a jerk.
According to the Vulture article, Ostrovsky is trying to make things right. He says, “I'm working to add attribution to every one of my posts, and will continue to do so.” But I wonder: is this all a bit too little to late? Is anyone really going to look back 2 weeks, let alone 2 months or 2 years, on his Instagram to see who really created any of the memes he posted? No. Moreover, given the widespread success that comes from even a single meme – as we see from the Keyboard Cat and Nyan Cat examples – Ostrovsky has already reaped the benefits. He has a book deal, the deal with Creative Artists Agency, the modeling contract, for god’s sake, the numerous brand sponsorships, and the Rosé. He presumably also has many other business ventures that were borne from his newfound relevance – all of which is built upon his use of others’ memes and jokes.
Given the lack of meaningful legal remedies for the victims here [aside from maybe filing DMCA reports with Twitter, you can do that here, and Instagram, you can do that here], it seems we can determine two things with certainty. One: the law in this area will likely be one of increasing interest and one destined to change quite a bit as memes and jokes are subjected to increasing misappropriation and commercial use. Two: while Ostrovsky may have a fair use argument, he certainly cannot argue his way out of the fact that he is a huge jerk.
And he may be paying for that now. There is certainly a price to pay for his rampant misappropriation of others’ creativity it in terms of reputation, and the backlash against him is exactly that price. His reputation is taking a big hit, and chances are, this Vulture interview will only lower people’s opinions of him – if they are thoughtful enough to consider how disingenuous it is (for instance, he claims he had no idea he was reaching such a large audience and thus, did not think he had to credit his sources. To which I ask, at no point while you were amassing 1 million or 2 million or 3 million or 4 million or 5 million followers on Instagram did you have even a fleeting thought that you were reaching a sizeable audience?). Also rather irritating is just how little blame he is really willing to take for what is at the very least, an utter lack of creativity and at worst, an extremely rampant spree of copyright infringement. Or as Vulture put it, he either consistently stole jokes or deliberately chose not to credit people for content he posted to his account. For instance, he says: “I didn’t realize that if you don’t have a source for something, then you couldn’t necessarily post it . . . I’d like to set the standard.” Except that there is a standard, dude. It’s called copyright law. You don't get to be the meme thief and the pioneer.
[IMAGE COURTESY OF YAHOO]