First World Problems:' A Fair Use Analysis of Internet Memes
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First World Problems:' A Fair Use Analysis of Internet Memes

Abstract

The phenomenon of Internet memes pictures with juxtaposed text

that are replicated by derivative authors to the point where the pictures

transcend the importance of the original posting and its underlying

work-has become a pervasive component of mass Internet culture.

Yet, there is little legal scholarship on the subject. This Article seeks to

fill that void or at least, a small part of it-by exploring whether or

not an Internet meme could survive an action for copyright infringement

by asserting a fair use defense. To that end, this Article considers

what Internet memes are and compares them to "actual" memes, as

the term was originally conceived in Richard Dawkins's The Selfish

Gene. Positing that Internet memes share many characteristics with

actual memes as described by Dawkins, the Article goes on to show

how those memes serve the functions of the theoretical concepts that

ground the fair use defense (namely, cultural interchange, market failure,

and productive consumption). The Article ultimately argues that a

meme user will likely prevail if he asserts the fair use defense.

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