Elliot ‘F**k Jerry’ Tebele (Photo by Gabe Ginsberg/Getty Images)
Curation has somehow become worst thing ever. (Hyperbole remains a close second.) There is a reason why the term “curator,” which was once a high-brow title reserved for those who carefully selected and arranged masterpieces in museum salons, has become an epithet, one hurled with spittle through clenched teeth.
Nowadays, “curator” is the vocational title adopted by those who do not create but who instead collect. These curators read the internet and aggregate the work of artists, monetize that work (often without attribution and almost never with consent), and then evince umbrage when the actual creators call them on their wackness.
It’s like a twist on the old didactic idiom: Those who can, create. Those who can’t, curate. And it was all relatively mellow vibes when these “curators” ran personal social media accounts that people scrolled through with a chortle while waiting for the subway. Now, though, these accounts are big business, with their owners commanding tens of thousands of dollars for sponsored posts. And many account owners have leveraged their followings to start actual brands, albeit brands built on the backs of unpaid creators, that include liquor companies, clothing labels, and marketing firms.
Elliot Tebele’s Jerry Media is one such company. It slithered up out of the primordial ooze that comprised the @f**kjerry Instagram account, an account populated with little more than stolen jokes and third-party visual gags. Its basic nature and the humor in the purloined material drove its follower count skyward and the dollars followed. As the account grew in popularity, it spawned a tequila company and a marketing firm, both owned, at least in part, by Tebele. And Tebele was not shy about using third-party content without consent to advertise his commercial endeavors. Even worse, it was reported that Tebele and his team would respond to creators who objected to the use without consent by providing flippant or disparaging responses.
Tebele is not a comedian or a writer or a photographer or a creator of any type. And he does not appear to be particularly funny or talented or even personable. But he is now at the head of a thriving multi-faceted company because he realized that people enjoy consuming bite-sized jokes and that such jokes could be had for free by copying them from the social media accounts of comedians, writers, and photographers.
His whole deal, though, has recently been ravaged by the very social media players upon whose content he built his brand. Perhaps triggered by recent documentary revelations that Jerry Media was paid to market the tragic Fyre Festival and was then paid again to create a documentary about the tragedy of the Fyre Festival, the ire of those who populate the socials began to roil.
Sparked by writer Megh White’s efforts, celebrities, comedians, and a whole bunch of other people have publicly voiced their dismay at Tebele’s content thievery and encouraged others to unfollow Tebele’s accounts. And while Tebele probably deserves to have his entire brand reduced to only that which he created (or properly licensed), which appears to be close to nothing, it may take more than social media hollering to right the wrongs he has wrought.
It may, in fact, take legal action. And, when viewing the situation through the lens of the law, it is almost certain that Tebele and his companies have violated numerous state and federal statutes. Let’s take take a look at the two most glaring transgressions.
First, most states have a law protecting one’s name and likeness from commercial exploitation. New York, for example, has enacted Civil Rights Law 51, which states that any company that uses someone’s “name, portrait, picture or voice” for “advertising purposes” without the “written consent” of the person being depicted is liable for damages. Tebele is in major trouble here because, in creating posts comprised of stolen content, he would often copy not just the creator’s content but also their picture and name. And, it was not his practice to obtain creators’ consent when using their work. When Tebele used this stolen content along with the name and likeness of the originator to advertise his various ventures, such as his Jaja tequila brand, he most likely violated NYCRL 51.
Second, Tebele has probably violated the U.S. Copyright Act by publishing without consent jokes and material that were created by third parties. The Copyright Act, at 17 U.S. Code § 106(5), protects authors against the unauthorized display of their literary work. Jokes, assuming they have a sufficient amount of substance, are literary works subject to copyright, as readers of this column know. Thus, a gag, even one structured in the classic two-line, setup-and-delivery paradigm, is protected under 17 USC 106 against copying, particularly verbatim copying, which Tebele and his team have apparently done hundreds if not thousands of times.
As our methods of communication evolve, so do our norms and standards, in both the moral and legal contexts. While Tebele may have been relatively blameless when he started the @f**kjerry account and began curating stolen content to build the account’s fame and following, he crossed the line into clear wrongdoing some time ago. His accounts, and accounts like his, should disappear or pivot to a business model where they pay the creators for the content they exploit. Until they do, they can expect developments like Comedy Central’s recent announcement that it was pulling all advertising from Tebele’s account. As it stands now, however, it may require the twin powers of social media lambasting and civil litigation to finally bring down the scourge of @f**kerry and its curator cohort.
Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.
@F**kJerry And The Scourge Of Content Curation curated from Above the Law
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