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 (and the livelihoods of those in similar situations, such as Fuck Jerry and Beige Cardigan, etc.), which largely amounts to joke and meme theft.
The core social media strategy of accounts like the Fat Jew, Fuck Jerry, and co. appears to consist primarily of stealing — or as Ostrovsky’s rather conveniently puts it, “commenting on” — others’ material and monetizing it, in an effort to build massive internet presences and spin those off into other profitable ventures. These accounts — many of which found their footing (and their followings) right at the advent of social media — seem to benefit significantly from the fact that the surge in use of Instagram has complicated some of the traditional notions of intellectual property.
Even if it is the norm on social media to post others’ images, whether they be memes or fashion images or other pop culture pics, without authorization, it is worth pondering the legality (or lack thereof) of the meme-stealing business in particular. But in order to do so, we first have understand if and where memes — the photos and/or video clips, and the jokes/captions that are often superimposed over them — fit into the scheme of legal protections.
Copyright law, which provides protection for "original works of authorship” seems the most appropriate form of protection here. Does copyright law protect jokes? Yes, although that protection may be thin. Does it protect memes? Generally speaking, if we assume that the memes are original, then it is safe to say that the answer is very likely yes. There is, in fact, some basis for this assertion. Nyan Cat, a popular animated YouTube video meme, wasgranted a copyright registration by the U.S. Copyright Office. Keyboard Cat, a video of a cat wearing a blue shirt and playing an electronic keyboard, was also registered with the U.S. Copyright Office.
Beyond registrations, we have seen copyright infringement lawsuits stemming from the unauthorized use of jokes and memes. In terms of memes, the most notable vase saw Charles Schmidt and Christopher Orlando Torres, the respective creators of the Keyboard Cat and Nyan Cat memes, file suit in 2013 against Warner Bros. for using the cat characters without the creators’ permission in a video game called Scribblenauts, and its sequels.
That case settled out of court with Warner Bros. agreeing to pay the creators in exchange for permission to use the memes in its video games (i.e., what it should have done in the first place). 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 and co., but I will come back to this point in just a minute).
Torres’s comment is an interesting one because it sheds light on how memes work; in order to be successful, they must be shared, virally so. This sets the stage for the complexity of the situation. While Torres has chosen not to legally pursue the vast majority of people who have shared his Nyan Cat meme, he probably could 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 Torres’ meme without his authorization (and absent a valid defense), you are infringing his copyright. It does not matter, from a copyright perspective, that he put it online. It also does not matter, from a copyright perspective, that millions of people may have shared it before you. Still yet, it does not matter if the stealing party credits the original source or not. Whether a meme thief properly credits the original source is legally immaterial 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. It is the ethical thing to do. But in terms of copyright infringement, crediting the source is basically 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 have a better argument under the fair use defense than those who were using Torres’s meme for profit.
So, what is fair use exactly? It is a defense to copyright infringement. As Stanford Law puts it, “in the most general sense, fair use is any copying of copyright-protected material done for a limited and ‘transformative’ purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner.”
To some extent, fair use might be a defense that the Fat Jew can claim. Although he does not create most of the memes or jokes that he posts and in many cases, copies the memes and jokes in their entirety, if he were faced with a copyright infringement lawsuit, he might try to argue that he contributes something new (and transformative) to these existing memes by way of the Instagram caption he adds – and he would almost certainly argue that his comments drive the success of his Instagram account.
While it is unclear if his addition of a caption to someone else’s meme or joke would amount to fair use (it is notoriously difficult to determine if a specific use of another’s copyright would be fair use), what I 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.
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 bringing in revenue) 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 revenue. However, the Fat Jew’s use of memes is thought-provoking (in a legal sense) because while his largely sponsored post-less Instagram account 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.
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 a court would 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 that 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.
Now, consider a recent Vulture interview. An excerpt that is rather telling 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 own 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 isn’t 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? That is an easy, 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 (?!), numerous brand sponsorships, and a rosé venture. He presumably can also boast about many other projects that were borne from his newfound relevance – all of which is built upon his unauthorized use of others’ memes and jokes.
Given the arguable lack of meaningful legal remedies for the victims 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 are subjected to increasing misappropriation and commercial use. Two: while Ostrovsky might (and that’s a hard might) have a fair use argument, he certainly cannot argue his way out of the fact that he is a jerk.