Image: via @colinhanks

How do create an Instagram account with a rabid and thoroughly monetizable following of more than 14 million, the momentum of which you can use to sell merch, start a lucrative marketing agency, launch various other affiliated business ventures, and build a multi-million dollar media empire? You do it by co-opting others’ content and claiming it as your own. That is the game plan that some wildly successful Instagram accounts have put in place in recent years.

Since its launch in 2011, the Fuck Jerry Instagram account has built up a following of millions of engaged Instagram users by way of a core social media strategy that detractors say consists primarily of aggregating imagery, videos, memes, jokes, and tweets from others – without approval from the creators and, in no small number of (still very recent) cases, without crediting them – and then monetizing it. And monetize it they have.

Back in 2016, Forbes quoted the Fuck Jerry team, led by Elliot Tebele – one of the 20-something founders of the viral Instagram account, and the similarly-named marketing firm, Jerry Media – as saying they were hoping to bring $2 million over the next 12 months. That figure was certainly helped in large part by the $30,000-plus sponsored Instagram posts for companies like Burger King, Comedy Central, and Jack in the Box, among others.

These monetization efforts go beyond sponsored posts on Instagram, though. Tebele, alone, has parlayed his internet fame into a very brief modeling career walking in Ermenegildo Zegna’s F/W 2017 runway show, a digital media company (Jerry Media), a card game (What Do You Meme?), a tequila brand (JAJA Spirits), and a Snapchat show.

As the Fuck Jerry account has been rising to social media fame, it has been plagued with claims of rampant foul play, but has persisted, nonetheless. While Josh Ostrovsky, the founder of the The Fat Jewish, very publicly came under fire four years ago for consistently engaging in joke and meme theft for his remarkably popular Instagram account, Tebele’s very similar account and its very similar tactics went relatively unscathed. That is until recently.

Over the weekend, immense Fuck Jerry-centric backlash swept social media. Comedian John Mulaney posted an image on Instagram that read “Unfollow Fuck Jerry,” alongside a comment about the account’s routine penchant for “stealing jokes from me and many other comedians and profiting off it.” Actor Colin Hanks, among others, also chimed in, alerting his fans to the fact that FuckJerry is little more than a team of “hustlers” and “con men.”

Pitted up against the court of public opinion, Tebele, already the subject of large-scale scrutiny thanks to his marketing firm’s involvement in the promotion of the epic fraud that was Fyre Festival, did what just about any other person with a business that is dependent on the public would do: he vowed to do better.

In a statement that was creatively-worded at best, the head of the multi-million dollar Fuck Jerry/Jerry Media empire, said on Saturday, “In the early days of Fuck Jerry, there were not well-established norms for reposting and crediting other users’ content, especially in meme culture.” He goes on, “It is clear that attribution is no longer sufficient, so permission will become the new policy.”

A lack of established legal norms? Not so fast. It is true that social media users have widely misconstrued some of the traditional notions of intellectual property. For instance, it is not uncommon to stumble upon the concepts that “once something is posted on social media, anyone can use it” or that posting another’s image is not infringement if you credit the source. Neither of those sentiments are based in fact.

Yes, social media platforms gain the right to use your content once you post it (as a result of the terms you agree to upon joining). No, that does not mean people on these apps can freely use your content. In terms of attribution, crediting the source of content is the nice thing to do. It is the ethical thing to do, but in terms of copyright infringement, crediting is largely immaterial because the infringement is complete once the protected material is published, sold, etc. without the permission of the copyright holder. As such, attribution has never been legally sufficient, and permission would have always been the policy for a law-abiding entity.

However, despite the layman confusion about how the law works, the law has not changed, and accounts like Fuck Jerry and the Fat Jew – which got their footing (and much of their followings) right at the advent of social media – have actively benefited by running afoul of it, seemingly under the guise that, as Tebele puts it, in the early days of Insta, “there were not well-established norms for reposting and crediting other users’ content.”  

The reality of the law is this: copyright law has – since the enactment of the Copyright Act in 1909 – protected original works of authorship in the U.S. This has come to see the creators of everything from original paintings and sculptures to choreography and jokes enjoy the exclusive right to copy, display, perform, etc. their protected works.

As a New York federal judge Katherine Forrest stated last year in a copyright infringement case that centered on the embedding of tweets that included an image of Patriots star Tom Brady, “When the Copyright Act was amended in 1976, the words ‘tweet,’ ‘viral,’ and ’embed’” either did not exist or simply were not – in the case of “viral” – used in the way as they are today. Judge Forrest asserted that despite such technological developments, “Courts must not be distracted by new terms or new forms of content, but turn instead to familiar guiding principles of copyright: original works deserve to be protected no matter the (tangible) format in which they come.

With that in mind, there are types of works on the list of things that copyright law protects that the drafters of the Copyright Act would have never dreamt of. Memes are one of them. It is clear that the underlying image used to make a meme is protected. Assuming a successful fair use argument exists (to date, no one (to my knowledge) has wagered such a defense in the case of a meme), the subsequently-created meme may be subject to protection, as well.

In short: taking another’s original content without the copyright holder’s authorization is illegal, reposting it for commercial purposes (which is what these big-name meme-ers are doing) is similarly out of bounds.

In other words, regardless of the dynamics of how memes work (and should work) and how they depend on public sharing in order to achieve their viral state, each time Tebele and/or his team posts another’s image or meme on the Fuck Jerry account without the authorization to do so, they are almost certainly infringing that at least one person’s copyright, whether they knew it or not. 

Against this background, Tebele’s announcement that Fuck Jerry has opted to update its approach and that “permission will become the new policy,” appears to be literally nothing more than Tebele saying that now, after 8 years in business, Fuck Jerry will abide by the law and not choose to consistently disregard it. 

But wait … Tebele and co. are arguably not the only bad guys here. What about the platforms that have enabled these accounts to become famous in the first place? Platforms like, say, Instagram. 

While Instagram has, in fact, been very active in terms of responding to notice and takedown requests from its users in connection with specific infringing materials posted on its app, it is arguably not in the Facebook-owned platform’s interest to police community guideline-breaking uses on its own. (Per Insta’s guidelines, “Don’t post anything you’ve copied or collected from the Internet that you don’t have the right to post.”). Instagram’s success as an app is largely based on the number of users that it can boast

More than that, Instagram benefits from the amount of time its users spend on the app – the more time they spend, the more ads it can serve them. Still yet, the more activity users have on Instagram, whether it be following new accounts, “liking” photos, commenting, sharing geolocational data, etc., the more the data Instagram can collect and by virtue of the nature of its parent company, god knows what happens to it after that.

So, Instagram is allowing accounts like FuckJerry to amass large followings despite its practice of posting allegedly copyright infringing materials, something that Instagram probably knows — or at the very least, should know.

It is difficult not to wonder about the practical and potentially legal role (i.e., contributory infringement?) that social media platforms have played in the rise of such large-scale intellectual property infringement, as well. That is something worth paying attention to as social media continues to be at the center of the lives of large numbers of figures across the globe, and as “a wide-ranging debate about what Internet creativity, ownership and culture should look like,” as the Washington Posts worded it, ensues.

As for Fuck Jerry, spare us the “we didn’t know what we were doing was illegal” excuses and the “but the law was unclear” pleas, neither of those arguments would matter in court. And the court of public opinion does not appear to be buying it either.