As internet memes go, Sad Keanu has been a relatively successful one. It surged onto the scene scarcely a month ago, on June 3rd, 2010, when the original poster put up the image with a caption that read: “I really enjoy acting… Because when I act, I’m not longer me.” Thanks to the mysterious forces that run the internet, the photo became destined for memedom, and rapidly gained in popularity, spawning websites, a charity called “Cheer Up Keanu,” and hundreds upon hundreds of photoshopped Sad Keanu images.

Unfortunately, two weeks later, the holder of the copyright on the photo, Splash News, decided that it had the right to put an end to the meme. They sent out a cease & desist letter to some of the meme’s promoters, and insisted that all Sad Keanu pictures be taken down. (Yeah, good luck with that, Splash.)

Hey Everyone,

Splash News has decided to keep their DMCA in place, as well as Tumblr, which means we may not publish any more of your awesome submissions and we must start to take down all of our previous 270+ posts. In addition, this blog will most likely be deleted in the next 48 hours by Tumblr because of the DMCA.

Although we do believe that it can fall under “fair use”, both myself and my partner don’t have any time or resources to fight it.

Thanks to everyone that helped out making this meme the most awesome one on the internet.

Cheers,
Dan

Because of the baseless takedown notice, sadkeanu.com was forced to take down all its Sad Keanu images, except for Sad Keanu images that have been so altered from the original image that the original photo is no longer present in a photorealistic state. (Legally, this is somewhat pointless; just because you use a Matrix-filter on the photo does not automatically make the photo un-infringing. But it seems to have satisfied Splash News, at any rate.)

The attempt to end the Sad Keanu meme through the use of a Digital Millennium Copyright Act takedown notice is wrong both from a legal perspective and from a normative one. Legally, the Sad Keanu meme is almost certainly not an unlawful infringement, as the meme is itself a parody of an unintentionally hilarious image, and, for that and various other reasons, is within the fair use exception. However, as the sadkeanu.com owners recognize, trying to fight off a baseless cease and desist letter is often far more daunting of a task than a party can feasibly attempt, and even if (when) the receive of the notice wins the case, their actual costs are still far greater than they would have been had they simply complied. So the owners of sadkeanu.com decided, as most people in this situations do, to comply with the extortion.

So even though the copyright holder has no valid legal right to order the take down of Sad Keanu, given Splash’s greater sophistication and resources, in actual practice, it is able to exercise a power over the copyrighted image that is massively broader in scope than is the actual legal right that they possess under copyright law.

Ignoring the strict merits of their case, however, Splash’s attempts to control the behavior of millions of people around the world, by preventing them from making or seeing Sad Keanus, is a perversion of copyright law. Sadly, copyright in the internet era is far too often used to stifle creativity, and to prevent the growth of user-created content. Allowing Splash Media to exercise their copyright power to end Sad Keanu does not serve a single policy interest of the United States, or the Copyright Act. None of the benefits provided by IP rights is served by this. Clearly, the total national production of paparazzi images will not be adversely affected if they are denied the ability to eliminate memes based on their photographs.

Moreover, absent the creation and perpetuation of the Sad Keanu meme, Splash News would have either no means or else very limited means of profiting from this image, once its initial run in the gossip magazines is complete. The Sad Keanu meme is not attempting to wrongfully exploit a value created by the copyright owner — rather, the Sad Keanu photo’s only source of value is the meme’s existence. In other words, if the “infringement” of the photo didn’t exist, the photo would be worthless. And if the “infringers” of the photo had been forced to pay for their use of the photo from the beginning, the meme would simply have never come to exist in the first place; people probably would’ve just gone and made some more lolcats instead.

But because the photo is now arguably famous — 99% of the credit for which can be given to the meme promoters and participants, and, at most, 1% to the copyright holder — the photo does conceivably hold some “value”, or at least it suggests there is a market for it out there, somewhere. How exactly to convert that value into a monetary return is a task to be addressed by the creative business savvy of the copyright owner — but one way that is guaranteed to not result in any profits for the owner is in sending draconian cease-and-desists to the very people who gave your product value in the first place.

This actually goes back the “fair use” factors under the Copyright Act, the last of which is the “effect of the use upon the potential market for or value of the copyrighted work.” In this case, the use of the Sad Keanu image to promote the meme actually created the potential market for the image and is responsible for the picture having a non-zero value. The takedown notice was little more than blackmail, and I hope that those who wish to parody the Sad Keanu image continue to do so, regardless of any litigation threats made my Splash Media.

-Susan

p.s. Note to Splash News: if you want to sue me for use of the Sad Keanu image above, please go ahead. I think it’d be fun