By Kenton Hutcherson of Hutcherson Law
(July 5) – Memes. They’re the sweet child o’ the social networking world. Memes are ideas or themes that spread quickly through social media. If you’re the subject of memes, they may seem mean-spirited, as Axl Rose from the band Guns N’ Roses has learned.
Rose was recently dubbed “Fat Axl” by the Internet. A fan, who may be a professional photographer, took a few unflattering pictures of the singer in concert, showing Rose a little heavier than usual. Since then, people have generated several different memes to poke fun at the singer’s weight using the lyrics from a few famous Guns N’ Roses songs.
Another said, “Take me down to the barbeque city where the sauce is rich and the ribs are meaty.”
While the memes were meant to be funny, Rose isn’t laughing. In fact, he’s turned to Web Sheriff, a company that helps protect intellectual property on the Internet, to file a Digital Millennium Copyright Act (DMCA) takedown notice with Google. The goal? To get the pictures and memes erased from the Internet.
“[If a photographer] was there and taking shots without permission or authority, then other considerations/factors would come into play as to what such individuals can and cannot do in terms of attempting to commercially exploit the resultant images of someone else’s show,” claims Web Sheriff.
The company might be right, but did Rose pursue the right strategy to scrub these images from the Internet? I don’t think so.
The Streisand Effect
Rose isn’t the first celebrity to fall victim to Internet trolls.
In 2003, entertainer Barbra Streisand filed a lawsuit against the California Coastal Records Project to erase pictures of her Malibu, California house. This company maintains an online archive of nearly the entire California coastline － Streisand’s house being the subject of one photo in its gallery.
While Streisand claimed the picture invaded her privacy, the Internet fired back. Many people believed her lawsuit was frivolous and harmful to free speech. Streisand became the upset bully, mad that someone took a picture of her house. And what do we naturally do when we see upset bullies? We point and laugh. The “Streisand Effect” was born.
Instead of burying the picture, the photos and links were spread across the Internet, bringing even more attention to the photo she was trying to hide.
Now, Rose is suffering the same fate after filing his DMCA takedown notice.
Is It Worth It to Submit a DMCA Takedown Notice to Google?
If a copyright violation is legitimate, then it may be worth it to file a takedown notice. The DMCA states that websites displaying copyright-infringing content posted by third parties are not liable for infringement as long as they remove the content upon receipt of a takedown notice from the copyright holder. Google receives over 92 million DMCA removal requests in a typical month. The overwhelming majority of those do not generate the Streisand Effect.
An illegitimate DMCA takedown notice can land you in hot water. You can be liable for the alleged infringer’s damages to put the material back on the Internet, plus attorney’s fees. That’s why it’s so important to consult an attorney who understands Internet law before submitting a takedown notice.
The game is different for celebrities, even when the takedown notice is legitimate. When someone as famous as Rose fights back against potential copyright infringement online, the media and Internet trolls take notice. Soon, stories about the DMCA takedown notice are drafted, published and promoted. The stories include the very content the celebrities want erased. What they were trying to bury suddenly pops up everywhere.
The media is doing its job by covering these high profile copyright cases. They’re not breaking any rules and they have full right to include the images in question in their articles. But in turn, by creating a story around the images, the celebrity has essentially encouraged more people to see them than would have otherwise.
This is all legal because of fair use.
The Role of Fair Use
Fair use is the idea that copyrighted material may be copied for a limited and “transformative” purpose without permission from the copyright owner, as the purpose is to comment upon, criticize, or parody the copyrighted work.
Filing a DMCA takedown notice can open the door to using the image in commentary about the image.
In the case of Axl Rose, the images can be used to comment on the fact that Rose has filed a DMCA takedown notice over the “Fat Axl” images. So, the headline, “These are the images Axl Rose doesn’t want you to see,” is a textbook example of fair use. Now, instead of letting the “Fat Axl” meme fizzle out of the public consciousness, Rose placed a huge spotlight on the very images he tried to hide.
My Take
Rose should be careful what he wishes for.
I’m sure Rose is regretting his decision to file the DMCA takedown notice. As the Streisand Effect comes into play, Rose will draw more attention to himself than he would have if he had never requested the meme be removed.
While it’s unfortunate these Internet trolls exist, sometimes the best thing to do is nothing. In this case, doing nothing would have done more to help Rose’s image.
Kenton Hutcherson is a Dallas attorney with an extensive background representing clients attacked in some way on the Internet. He often handles cases involving Internet defamation, invasion of privacy, and copyright disputes. Mr. Hutcherson can be reached at kjh@hutchersonlaw.com.