Three years ago, for instance, a short video appeared on Vine of a 16-year-old named Kayla Newman preening. She used a phrase she had invented to describe her freshly done eyebrows: “on fleek.” The clip exploded online, and the phrase entered the popular lexicon. “On fleek” started showing up in songs, in conversation and even in a commercial for disposable cups. In an interview for The Fader, Newman said she felt she should have been somehow compensated for her ingenuity. “I gave the world a word,” she said.
Was she right? The types of ideas protected by intellectual-property law typically don’t include a clever catchphrase on a Vine or a film idea in a tweet. But it’s difficult to dismiss Newman entirely; the “freemium economy” that Anderson heralded works only if the old hierarchies of access have been dismantled. And for the most part, they are still intact.
Newman posted videos to Vine in the hope that they would eventually land her a job, an endorsement. Instead, she had to watch from the sidelines as her phrase was used to punctuate rap lyrics and sell products. When BuzzFeed published a hugely viral photo of an ambiguously colored dress (was it black and blue or white and gold?), the woman who took the photo and uploaded it to the internet, Cecilia Bleasdale, wanted compensation. She hired a lawyer, and BuzzFeed settled the case by obtaining the copyright from her. But a writer for the blog TechDirt argued that her suit failed to understand how the internet works. “Taking credit for viralness because she took the photo completely misses the point,” he wrote. “Copyright assumes that it’s solely the act of creation (a quick click of a cellphone camera button in this case) that creates all of the value. But it’s not.”
Whether or not you agree with that analysis, the incident does point to the growing schism between those driving cultural conversations online and those profiting from them. There’s a rich history of excluding certain types of creators from compensation for their contributions to culture. In her 2006 article “Fair Use and the Fairer Sex,” Ann Bartow, now the director of the Franklin Pierce Center for Intellectual Property at the University of New Hampshire School of Law, pointed out that “copyright laws are written and enforced to help certain groups of people, largely male, assert and retain control over the resources generated by creative productivity.” Historically, she noted, that infrastructure played a key role in sustaining “the material and economic inequality between women and men.”
“It’s not just that technology isn’t keeping pace with innovation,” says Amanda Levendowski, a teaching fellow at the New York University School of Law. “It’s that we aren’t keeping pace with how to serve new types of creators who have never been valued by intellectual-property regimens.” Often, those people most responsible for cultural touchstones are unable to profit from them because they don’t have access to capital and resources (a digital ad agency, say, or a Hollywood pitch room). The internet has become the go-to place to toss out ideas, in the hope that they could lead to a job, but it has also become the place where people go to find the best ideas, creating a lopsided dynamic that tends to benefit people in power.
This dynamic is further complicated by the way social media psychologically encourages and socially rewards us for our contributions to online culture. The founders of Instagram studied psychology and computer science at Stanford University. Before Facebook acquired the app for $1 billion, Kevin Systrom, one of its creators, spoke about designing a “natural cycle” of participation that would keep engagement up on his service. “The more people love seeing content on the platform, the more they use it, the more they post,” he told Business of Fashion in 2014. Likes and retweets on Twitter and Tumblr perform a similar function. Researchers like Nir Eyal and BJ Fogg have written about how apps “hook” users and cultivate addiction. Online, there is an irresistible social currency to being a user who has thousands of followers, who starts memes, who comes up with an idea that is turned into a movie. But I wonder how comfortable we should be with this arrangement.
Not long ago, I watched “The Founder,” the movie about the businessman Ray Kroc, who mutated McDonald’s from a family-owned restaurant into the global multinational corporation it is today. There’s a scene in which Kroc, played by Michael Keaton, explains his plans to Dick and Mac McDonald. Kroc, who is in the process of swindling them out of a significant fortune, tells them how he justifies his behavior, by adding value to their original idea: “Do you know what I came up with, Mac? A concept. I came up with the concept of winning.”
In the movie, it’s easy to identify Kroc as an amoral exploiter, sponging off the labors of Dick and Mac. Which brings me back to the Rihanna-Nyong’o film project. Ownership on social media is far from clear. Even the genesis of the project is disputed, with some pointing to a meme on Tumblr as the original source. For now, representatives for Issa Rae have told Vanity Fair that the Twitter users who came up with the concept will be credited in some way, and judging by their tweets, they seem to be satisfied with that recognition as adequate payment. Meanwhile, we can expect everyone else associated with the film to actually be paid.
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