Meme Law could be coming to a federal court near you with a new case against Jerry Media.
The company, facing backlash lately from the comedy community for its aggregation and use of jokes it did not originate to fuel its extremely popular F–kJerry social media accounts, is being sued in New York by someone who claims to have created a joke meme that allegedly made its way into a marketing campaign for a Jerry Media client. The company charges upward of $25,000 per social post for clients and so functions primarily as a marketing/advertising company.
Olorunfemi Coker, an influencer based in Nigeria, claims that Jerry Media, along with its owner and founder Elliot Tebele, violated his copyright to a meme that he created representing an iPhone text exchange with a person who was drunk and thought to get an Uber home from his own house. Not only did @F–kJerry in January post Coker’s meme, but Coker claims that it tagged JaJa, a tequila company it was doing marketing for.
Coker claims that this was part of Jerry Media’s “online search and copy campaign” and that it “published and exploited” the content without his authorization.
A spokesman for Jerry Media said simply, “This is a frivolous lawsuit and we intend to defend it vigorously.”
Coker claims that the company’s use of his meme constitutes a willful violation of federal copyright law, an infringement of his trademark as well as false advertising, unfair competition and false designation of origin. He is asking the court to enjoin Jerry Media from further use of the meme and for unspecified monetary and punitive damages to be determined through a jury trial.
“Defendant’s acts were done with actual knowledge of Coker’s ownership and prior use of his name in commerce and to the general public and with the intent to unfairly compete, to trade upon Coker’s reputation and goodwill by causing confusion and mistake among customers and the public and to deceive the public,” Coker added in his complaint.
But Coker’s claim that he owns the text meme is likely to be a major part of Jerry Media’s defense of the case. It seems that the text exchange may have actually originated on the Tumbler account monstatexts. According to the blog’s related Twitter account, it is a sub account of Texts From Last Night, which started as a blog a decade ago. As Coker’s suit rests on his assertion of ownership, if it turns out he did not originate the meme, the case will in all likelihood be dismissed in short order.
Another area of defense is the recent Supreme Court ruling requiring copyright registration for any related lawsuit filed in Federal Court. Fara Sunderji, a partner with Dorsey & Whitney working in copyright law, pointed out that Coker is trying to use his status as a Nigerian registrant to skirt the need to have his alleged meme image registered as a copyright, but that even if the case is dismissed or settles, more caution is needed by those who see user-generated content on the Internet as a free for all.
“The uproar of the #f–kf–kjerry and its [related] movements appears to be grounded in the fact that average people (mostly Millennials) are tired of getting their jokes, memes, photos and likenesses stolen by influencers (without credit or permission), who are cashing in on sponsored social posts often worth well into the five figures,” Sunderji said. “Many supporters have cried that it is not just about credit, but compensation. And that’s the way that copyright works. It is an incentive for artists to create content. While memes by their very nature are meant to be posted, liked, shared and reposted, they apparently have the potential to be valuable, too, which cuts against free sharing.”
F–kJerry in recent months has been pressured to change its practice of aggregating and reposting funny comments and memes without credits to its social media platforms, where it has 14 million followers on Instagram alone and claims to have 40 million followers collectively across platforms. In an op-ed for Rolling Stone, comedian Vic Berger took Jerry Media and Tebele to task for what has distilled as the business model: “They stole people’s tweets, removed credit and monetized it.” He called for the outright deletion of the F–kJerry’s social media accounts, claiming they are “overflowing with unconsented, uncompensated material.”
As Berger points out in his op-ed, much of the scrutiny around Jerry Media stems from the release of the Netflix documentary on the disastrous Fyre Festival, which has been the subject of its own lawsuits, along with its organizer Billy McFarland, for essentially defrauding the public with promoting a luxury music festival that was ill-organized and never took place. Jerry Media produced the documentary but also served as the festival’s marketing agency, raising some eyebrows.
Apparently in response to the backlash, including the creation of the hashtag #f–kf–kjerry, which was trending for a minute, Jerry Media’s accounts have indeed started to credit creators and Tebele made an “updated content policy” public in a February post to Medium.
While Tebele admitted he’s “made enemies over the years for using content and not giving proper credit and attribution to its creators” he defended his actions and those of his company by arguing “in the early days of F–kJerry there were not well-established norms for reposting and crediting other users’ content, especially in meme culture.”
Nevertheless, Tebele said F–kJerry will “no longer post content when we cannot identify the creator and will require the original creators’ advanced consent before publishing their content to our followers.” Since then, F–kJerry accounts have been including “credit and consent” with account names of creators and even calling for formal submissions of content.
This new policy went into effect about a week after Coker’s post.
Editor’s Note: This case has since been voluntarily dismissed.
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