DlGITAL MEMES, FAlR USE, AND THE FIRST AMENDMENT

摘要

Social media today invariably enable and encourage the creation of individuated online identities through repetition, reproduction, and remixing. Unsurprisingly, digital memes, with their rich semi-otic connotations, are popularly used for the purpose of creating, maintaining and remaking of a digital public persona, and should generally qualify as highly transformative secondary uses that repurpose copyrighted works in an online medium. In this digital carnivalesque environment, they may be employed for discursive activities that would qualify for First Amendment protection-such as using an Oprah meme to humorously comment on the COVID-19 pandemic or gay marriage-or just simply employed to amplify one's emotion at a particular moment in time much like writing a digital diary on social media. This Article does not contend that there should be a per se rule that all digital memes are fair use. Fair use ought to be found for most private individuals using memes, but the finding may not be as certain for influ-encers on social media who gain a commercial benefit from their social media account or for multinational corporations seeking to capitalize on popular iconic works for profit.