Last week, we wrote about some of the copyright issues around the whole "Harlem Shake" meme (and, yes, we know it's not the "real" Harlem Shake, so don't even bother commenting about that). However, a few days ago, I was talking to an old friend who also happens to be an IP lawyer, and he pointed out one of the nuttier things about our copyright system. Yes, he said, Baauer is making tons of money by monetizing all of those Harlem Shake videos with ads. But Baauer actually had almost nothing to do with the popularity of the song or the meme itself. This isn't a Psy situation, where his video/dance created the meme. Instead, as we discussed, there was this video, which led to this video, and then this video and then this video... and then tens of thousands of copycats bloomed.

Yes, they all use 30 seconds from Baauer's song (which itself included many samples from others, some of which do not appear to be licensed, based on Baauer's own statements), but the popularity was because of the original video by "Filthy Frank," and then TheSunnyCoastSkate (TSCS) building on that to create the basic framework, quickly followed by PHLOn NAN and the folks at Maker Studios. In many ways, this reminds me of Derek Sivers' popular discussion of the importance of the "First Follower." As he notes, it's the "first follower who transforms the lone nut into a leader." And then you have the "second follower" which represents a "turning point" in creating a movement. In this case, none of these key aspects had anything to do with Baauer. Yes, the song was there, but there were any number of songs that could have kicked off a similar dance craze. The reason the whole meme happened had to do with those originators, and the first few followers, turning it into a meme. I don't think any of them are complaining. In fact, they all seem (quite reasonably) thrilled that they're suddenly getting tons of attention and millions of hits (and plenty of new followers) for their role in building the meme.

But, when we step back and look at the copyright system, it does make you wonder why the system is so focused on Baauer's ability to get paid, but not the people who actually made the whole meme what it is. In many ways, this is an extreme example of where copyright may be fundamentally flawed. Content becomes popular through cultural sharing. People talk about something amazing and it gets passed along. The "Harlem Shake" videos are a form of that, where the importance of everyone in the role of expanding the community and making the song/meme a cultural "thing" is that much more clear.

Historically, we've often lumped together the initial creative work with the eventual popularity of it, leaving aside the role of the community in making that work a hit. But the Harlem Shake is a case where we can actually separate out those two things, and realize that perhaps copyright is focused on only one part of our cultural setup, while ignoring what may arguably be the more important part: those who make something culturally relevant.

Now, I'm a big believer in learning to gain benefits without resorting to copyright, and it seems like the folks who really built this meme are being rewarded in their own ways, outside of the copyright system. But, for those who think that copyright is necessary to "reward" creators, and who argue that copyright is all about fairness in protecting the rights of creators, do the people who actually "created" the popularity around this meme not count?

The internet is filled with strange memes, but a recurring theme seems to be asking a simple question about "who would win in a fight?" given various outrageous scenarios. Here are just a few amusing examples.

• President Obama was asked a question on Reddit: "Would you rather fight 100 duck-sized horses or one horse-sized duck?" Read up on the probable abilities of an enormous duck... because this question is bound to come up again (and again and again on Reddit). [url]
• "How many 5 year-olds could you take on at once?" was a question brought up a few years ago that got a bunch of people (mostly guys) thinking about how tough kindergarteners are. Generally, the answer should be approximately one or two times your weight's worth of 5yo's, depending on how athletic you are. [url]
• In a fight between a polar bear and a shark -- which animal would win? So far, there's evidence that a shark has actually eaten a polar bear, but that's not proof because the shark could have eaten a dead polar bear. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post.

Unless you've been living under a rock the past few weeks, you're by now aware of Gangnam Style, the meme/song/video/dance craze/pop culture phenomenon by Korean pop star Psy, that was kicked off with this video, but has become much, much, much more. Of course, there have been thousands of parody videos created, different versions of the song and a variety of other meme-related content. I was at a wedding a week and a half ago, and basically everyone there, including many of the "older generation," were well aware of the song and ready to do the dance when the DJ played it. It's basically everywhere. It's become so popular that, this week, an attempt to do the video without the music but adding back in the "natural" sound effects, is pushing 6 million views all by itself.

Oh yeah, and the song is doing quite well on the charts as well. The song is currently at number 2 on the Billboard charts, but has recently hit number one in 10 countries, including the UK and Australia. Down in Australia, for the publication TheVine, Tim Byron explores the cultural phenomenon and notes that this appears to be the first song that started as a meme that made it to number one on the charts. Other songs have charted and then became memes, or were memes that charted -- but not as high.

But, then, in the middle of the discussion, Byron makes a really interesting point:

One of Psy's cannier moves has apparently been to waive copyright on 'Gangnam Style' so that anybody can use the music and the video as they like. Most of the social media response to 'Call Me Maybe' is basically different ways to say 'this song is really catchy'. Once 'Call Me Maybe' truly became a famous meme, the meme was largely specifically about how catchy it was. 'Gangnam Style' is different. The social media response to 'Gangnam Style' is largely about absurdity, about the surrealism of the song and the video, not really about music for music's sake. 'Gangnam Style' has become an event. It's a piece of shared cultural currency which can be taken as known in a world which is increasingly nicheified.

I don't know if Psy or his label has actually done anything explicit to say that he's "waived" his copyright on Gangnam Style, but it is clear that he's been perfectly happy to have tons of folks make their own versions, edit the video and much much more. Each one of those things only seems to drive much more attention to the original, which only helps Psy out even more.

So, even if it's not really true that he's "waived" the copyright on the song or video, can anyone honestly argue that copyright has had a significant hand in the Gangnam Style cultural phenomenon? If anything, it's the fact that everyone ignores the copyright that has made it such a big deal. A large percentage of those derivative works and videos almost certainly "infringe" upon the copyright of both the song and the video. And yet each and every one of those "infringements" has probably helped Psy. You'd be hard pressed to find a single case where it has hurt him.

Hell, just imagine a world in which everyone making those response videos would have needed to get permission from Psy or his label. Does anyone think that, under those circumstances, it would be the same sort of cultural phenomenon today? Obviously, there's no way it would be anywhere close to as big.

In other words, whether or not Psy waived his copyrights, it's difficult to argue that copyright has had anything to do with his success with Gangnam Style and it seems clear that it is the fact that most people ignored copyright that has helped spread the song and video so far and wide.

We are all aware of the aggressive nature of Bethesda parent company Zenimax when it comes to trademarks. We now learn that it is not only aggressive in defense of its trademarks but is also an aggressive filer of trademarks for things surrounding its properties. Fusible is reporting that Zenimax has recently filed 6 different trademark applications covering a variety of uses of the phrase "Fus Ro Dah".

For those of you not in the know, "Fus Ro Dah" is a phrase spoken by characters in the Bethesda game Skyrim when casting a spell that sends a blast of energy knocking back anything in its path. For those Star Wars buffs out there, it is very similar to a Jedi Force Push. This spell has spawned its very own meme using both in game footage of the spell use and the use of the phrase just before real people fall on video, as can be seen here:


While we are not entirely sure of Zenimax's true intentions, we do know that due to the ownership culture we have in the US many companies want control over anything related or somewhat related to their properties. This protectionist attitude is probably the primary driver of this move. Zenimax most likely feels that since this meme is based on one of its properties, it should have sole control over its use.

Unfortunately, this move to trademark a meme can actually result in its premature death. Memes are born in the wild and are best able to grow and spread if left to the whims and wiles of those on the internet. Memes cannot be controlled or tamed. If Zenimax's trademark filing is approved, the moment it makes its first move toward control, such as sending a cease and desist or taking down a video, it will feel a backlash by fans of Skyrim. If Zenimax had anyone capable of rational thought running its operation, it would have left this meme be and sat back and enjoyed the free advertising it provides for one of its games.

Back during the February domain seizures by ICE, before ICE had officially announced which domains had been seized, we saw some stories that named a few of the sites. So we contacted one of the administrators for one of the sites in question, which showed the "seized" graphic on it, asking about the guy's intentions and how he would respond. We got back a really bizarre answer, and I began to to suspect that the guy was messing with us. That turned out to be the case, as ICE officially listed the sites and that guy's site wasn't included. Miraculously, his site went back to being the same old blog it was before, a few days later. Then, for April Fools, we were actually inundated with sites telling us they had been seized by ICE and we didn't run any of those stories, knowing they were bogus. Recently, that's been happening more and more often. There was the story about some conspiracy theory guy claiming his site had been seized by ICE, after being hacked and having infringing works uploaded. That turned out not to be true. And now, there's a story about the hacking group LulzSecurity made their own website look like it had been seized by ICE.

Both of these later stories involved bewildered ICE spokespeople trying to figure out why the press was calling them and insisting that no such domains had been seized at all.

But all of this makes me wonder if "my site's been seized by ICE" is becoming a meme, a la the rickroll, in which sites looking for attention suddenly pretend that they were seized by ICE. At best, this seems to suggest that, for all of ICE's insistence that this program has been a massive success in "informing" the public, an awful lot of people associate the ICE seizures with being a total joke, ripe for mocking. It certainly seems to detract from the message that ICE is trying to send. Separately, this does make me wonder if one of these pranks is going to get someone in trouble at some point. It's pretty silly, but the federal government gets all upset when you use their various logos and seals without permission...

If you've been living under a pop-cultural rock the past couple of weeks, you might have missed the "Pants on the Ground" meme, birthed on American Idol, that's been going around. Basically, there was some Idol contestant, "General" Larry Platt who performed a song he "wrote" himself called "Pants on the Ground." It's awful in that "wow, this is going to be an internet meme" kind of way... and the Idol crew milked it for all it was worth. Not only are lots of people recording their own versions of it, Platt is appearing everywhere. However, this is a "mine, mine, mine" society, and Rose M. Welch alerts us to the news that Platt is complaining that he hasn't received a dime from everyone using the song, and he's lawyering up to try to fix that.

How ridiculous is this? The guy just got a ton of publicity and has made his name and his song known around the world. You don't cash in by going back and demanding cash -- you cash in by doing something new for money. He shouldn't be hiring a lawyer, but a business manager. If people had to pay for every use of his song originally, no one would even know who he is.

Separately, the link above claims that "Platt never copyrighted the song," but that's not right. Platt automatically gets a copyright on the song once it's been set in fixed form in some manner. So if he wrote it down somewhere or recorded it or something, he has the copyright. What they probably mean is that he didn't register the copyright, which would limit his ability to do anything about it. Plus, I would imagine that the lawyers at Fox and American Idol made sure he signed over all sorts of rights before performing that song on the air....