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There's this theory about levels of mediation in media that says it's possible for artificiality to both remind the audience that what they are seeing is a construction while at the same time adding to their level of immersion. [...] the obviously constructed nature of the scene would by its very artificiality create its own sense of...versimilitude.
—"Hyper-Mediation in New Media - Ep: 80". The Lizzie Bennet Diaries. Uploaded 17 January 2013 to Youtube. Starting at 01:38.
by guest blogger Stacey Lantagne
Memes implicate many legal issues, one of the major ones being copyright infringement and fair use.
The copyright dispute here revolves around a photograph of Willie Nelson taken by the plaintiff, Philpot, and posted to Wikimedia pursuant to a Creative Commons Attribution 2.0 Generic license. This license permits sharing and adaptation of the work, as long as proper attribution is provided.
The defendant, Alternet, took the photo and superimposed a quote over it: “Rednecks, hippies, misfits – we’re all the same. Gay or straight? So what? It doesn’t matter to me. We have to be concerned about other people, regardless. I don’t like seeing anybody treated unfairly. It sticks in my craw. I hold on to the values from my childhood.” The quote seems to come from a 2010 Parade interview with Nelson. After superimposing the quote, Alternet posted the photograph on Facebook with the caption, “We need more values like this.” Alternet did not credit Philpot for the photo, which was shared 33,000 times from Alternet’s Facebook page.
Philpot sued for copyright infringement and DMCA violations, and Alternet moved to dismiss. Its copyright infringement defense basically boiled down to meme = fair use. The court’s analysis, however, focuses on the number of factual questions needed to be resolved before a fair use decision could be rendered.
On the first factor regarding the purpose and character of the use, the court notes that it can’t decide purely on the complaint whether Alternet’s use was transformative. Alternet asserts that it was using the photograph for political commentary, which is different than the photograph’s original purpose. However, the court finds that Philpot “credibly argues” that his purpose was to use the photograph to identify Willie Nelson, and that Alternet is likewise using the photograph merely to identify the source of the quote superimposed on top of it.
It’s hard to win a fair use defense when a court decides that it needs more facts to rule on transformativeness, and the rest of the analysis predictably can’t save Alternet’s motion. The court finds that the rest of the factors similarly require factual analyses inappropriate for the motion to dismiss stage. Alternet’s fourth factor effect-on-the-market argument, in particular, focused on outside evidence, such as Philpot’s testimony in previous copyright infringement cases, which the court finds it inappropriate to consider at this stage.
Alternet fares better with dismissal of Philpot’s DMCA claim. Philpot’s complaint alleged that Alternet should have known its removal of the metadata attached to the photograph would enable infringement of Philpot’s copyright, but the court finds this a conclusory allegation with no facts pled as to Alternet’s mental state. Because the relevant portion of the DMCA requires an “affirmative showing . . . that the defendant was aware or had reasonable grounds to be aware” of the consequences of its action, the court dismisses the DMCA claim with leave to amend.
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In my previous work on memes, I concluded that the word “meme” is used to describe so many disparate things that a one-size-fits-all fair use analysis seems untenable. Some memes are incredibly transformative of the source material, while other things that people call memes seem much less transformative to me. The version of a meme at issue in this case – a photograph with text superimposed over it – seems to me to be one of the middle cases. I could see different instances of this going either way on a transformative analysis, depending on what exactly the superimposed text is in relation to the underlying photograph.
What really strikes me about this case is that it’s actually all about attribution, a right that is enormously popular with creators but that’s not actually part of the exclusive statutory rights of U.S. copyright. I’ve been observing for a while this phenomenon when it comes to credit: It’s often immensely important to online creators, but it’s not really part of U.S. copyright law. Philpot’s license allowed Alternet to do virtually anything with the photo as long as it provided the proper credit. This entire lawsuit could have been averted so easily.
Case citation: Philpot v. Alternet Media, Inc., 2018 WL 6267876 (N.D. Cal. Nov. 30, 2018)
WHAT
[ID: a screenshot of text in Grammarly. The words “was mind-numbingly annoying” are underlined in yellow, and a pop-up reads, “Want to sound less negative? menx’k rxxp qiurezok.” End ID]
Wonder if one could backform a naming language from this, just for fun. "x" would have to be a vowel sound, so people can say "rxxp".
if you assign the letter x a sh sound I can absolutely say rxxp
/ɹ(ə)ʃp/ I suppose?
We've been going through my grandmother's belongings since she passed away and I found this amazing game that she had intended to give me!
I'm not sure exactly how it's played, but it looks like it came out in 1967 and this one has barely been touched. The game cards inside are still shrink-wrapped:
It's even going to look great on a bookshelf!
I've found old games on the Boardgame Geeks online database. Hold on, going to give it a shot.
Seems like some BoardGameGeek members made some cool additions like fanmade candidate cards up to 2020 (registration required for download). I love seeing enthusiastic niche hobbyist communities like this.
Thanks for sharing, and what a great find!
We've been going through my grandmother's belongings since she passed away and I found this amazing game that she had intended to give me!
I'm not sure exactly how it's played, but it looks like it came out in 1967 and this one has barely been touched. The game cards inside are still shrink-wrapped:
It's even going to look great on a bookshelf!
I've found old games on the Boardgame Geeks online database. Hold on, going to give it a shot.
🌎 Join us for a full day of family-friendly activities celebrating our home planet at EarthFest—including Identification Stations for your discoveries ⬇
get in the dustpan. since you wanna make sweeping statements
i got back into twine (the text adventure creator) yesterday and got a pretty complex character creator working! does that constitute an egg? :]
that's incredible! I've often been fascinated by Twine, but never touched it. I didn't even know you could do character creation in it. that definitely constitutes an egg. thank you for sharing and well done.
Not to dox myself, but I live in a house at the corner of a busy intersection and my partner realized that we can fly two flags on our flag pole. Usually we have the star trek federation flag and the pride flag or something along those lines. Since there's a lot of folks still with election flags for the orange one up, we make sure that the pride flag is always crisp and not frayed (this usually leads to folks yelling nasty things at our house, but whatever. Two adult, hetero-passing couples live here, we can handle it).
Anyway, in light of.... Current events and such, we have updated our flags to the trans flag and the Ukrainian flag. We've had them up for probably 2 weeks now and the sweetest kid just knocked on our door to give us homemade brownies as a thank you for flying the trans flag??? He said he just got home from college and it was nice to see family in the sea of MAGA flags and.... Fuck y'all. I'm crying in the shower because we're finally the adults we needed when we were kids. I hope that kid has an awesome day.
i beat myself up for not knowing enough about my special interests a lot but then i remember the average person off the street has no idea what the carboniferous is and i feel better
are you really bad at it or are you in "good at it" spaces
courtesy of the Explain xkcd wiki page
[Ponytail and Cueball are talking. Ponytail has her hand raised, palm up, towards Cueball.]
Ponytail: Silicate chemistry is second nature to us geochemists, so it's easy to forget that the average person probably only knows the formulas for olivine and one or two feldspars.
Cueball: And quartz, of course.
Ponytail: Of course.
[Caption below the panel] Even when they're trying to compensate for it, experts in anything wildly overestimate the average person's familiarity with their field.
Title text: "How could anyone consider themselves a well-rounded adult without a basic understanding of silicate geochemistry? Silicates are everywhere! It's hard to throw a rock without throwing one!"
poker is a hateful game that punishes people who wear their beautiful sensitive heart on their sleeve
just because youre made of stardust & other gay shit doesnt mean that a bug isnt. be nice to a bug today
Be kind to your many-footed friends
For a bug may be somebody's mother
Patch for a Gemini mission that never flew. On February 28, 1966, Elliott See and Gordon Bassett, flying from Ellington Air Force Base near Houston, Texas in order to inspect their Gemini 9 capsule at McDonnell Aircraft, were killed when attempting to land at Lambert Field, St. Louis, Missouri in poor weather. A failed approach and recovery led their T-38 trainer to strike the roof of McDonnell's Building 101 and disintegrate before either of them could eject. Thomas Stafford and Gene Cernan, the backup crew, flew Gemini 9 into orbit on June 3, 1966, returning June 6th.
@identifying-spacecraft-in-posts @identifying-spaceships-in-posts less for identification, more for thy amusement (though there is the reflection of the capsule in the helmet visor)
