An Internet Meme is in legal terms, a derivative work, and usually copyright owner is the only party with the legal right to create a derivative work. However, the rights of the copyright owner are not exhaustive or absolute. If the person who makes the “derivative work” makes “fair use” of the copyrighted image, this is a defense to a claim of Copyright Infringement.
We’ve talked about Fair Use before, but let’s go over it again briefly so we’re all on the same page. Courts usually to measure fair use by the following four areas (often referred to as prongs) outlined in §107 of the Copyright Act:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
It’s been widely held that the first prong of fair use will be satisfied if an artist or any person uses the image for purposes of commentary, criticism, reporting, or teaching. In addition, the Supreme Court has unequivocally held that a parody and or a satire may qualify as a fair use image under the Copyright Act since it’s a commentary on an original work.
Aren’t memes inherently parody or satire?
Being liable for the use of an identifiable image or copyrighted character seem to be governed by a few factors: 1) Whether the person creating or sharing the meme make revenue (even indirect revenue) from sharing the meme, 2) the extent to which the copyright holder’s work has been used or copied, 3) whether the nature of certain TV and media characters makes them famous and susceptible to other uses, and 4) the potential of the meme to harm the brand of the copyright holder. For example, if they are so outlandish and crude and clearly not attributable to copyright holder, it would be difficult for a copyright owner to be successful in an action for copyright infringement because there is little to no damage. However, based on the past, it’s certainly not impossible! (see Walt Disney Productions v. Air Pirates, 345 F. Supp. 108 (N.D. Cal. 1972) for more).
There are certainly examples of Getty Images sending letters demanding license fees be paid by those who have used memes created by others from copyrighted content owned by Getty; in this case the Awkward Penguin, which is a photograph by George Moberly and for which Getty handles the licensing. It’s enough to give anyone pause!
The best course of action is to only use images for which you either have a license or own copyright. Of course, this isn’t very popular advice – telling you not to feature Big Ang, or that cute kid or the awkward penguin picture on your business facebook page. But here’s the thing, while you may not face any challenge from posting a meme on your personal non-business blog (if non-monetized) or your personal facebook page, it is not the same as posting or sharing on your business website, facebook page, Instagram or Snapchat account. You certainly open yourself up to receiving a take-down or pay up letter!
They May Not Care
“Even if it might actually violate copyright legally speaking, content owners may not press the issue because it helps ingratiate their brand into the culture to have their work copied all around the Internet…”! – Arther Law’s Industry Insider
Phil of Arther Law’s Industry Insider shares that while sites like RealityGif’s routinely share the copyrighted property of major television and broadcasting companies like NBCUniversal, Viacom, Fox, Discovery Networks, and AMC Networks, including shows like The Real Housewives of Beverley Hills, The Real Housewives of Atlanta, RuPaul’s Drag Race, and The Real Housewives of New Jersey, they have never received a take-down request, or a request to pay for the use of copyrighted material. This is despite their disclaimer openly stating that any ad revenue from the site and the sales of merchandise, including stickers made from the most popular gifs on the site, go toward the upkeep of the website.
Arther Law muses that the reason for the copyright owners choosing not to go after the creator of RealityGif is because sites like this, and other meme generators or sharing platforms (like Tumblr), serve a promotional purpose.
So what happens if you get a take-down letter from a copyright owner or licensing agency?
As described on Art Law Journal, there’s no need to cave fast under pressure when faced with a “Getty letter” or letter from another copyright owner or licensing agency in relation to an internet meme. Getty’s business is copyrighted images, and as such they have a vested interest in earning money through protecting its works, however things may not always be as they seem. In fact, the company was recently sued for its deceptive practices. This is where is can be helpful to have a developed relationship with an attorney! Before you pay up, make sure you even need to.
So even before you talk with your attorney, initially confirm that the image in question is in fact the same or similar to the image in the meme. In other words, make sure you’re talking about the same thing! Second, make your own judgment about whether use of the image constitutes fair use. Are you making money out of it? Even indirectly? Does it constitute commentary and thus equates to parody or satire? How much of the image did you use? Is the image of a character or of a medium that is susceptible to other uses? – You would still need to prove the “fair use” during legal processing, but copyright holders or licensing agencies are less likely to proceed with legal action if they think it is more trouble than it is worth financially. It will help to have thought about these questions before you consult with your Attorney.
Finally, it might be helpful for your own knowledge to do a “fair market value analysis” in order to determine whether the figure the copyright holder or licensing agency claims the image is worth, is the actual fair market cost of the image. To calculate the fair market value, just use the average price of comparable images found on stock photo sites. For example, if the image in question is a Cat jumping into the air, then find 8 or so images of a cat jumping into the air; use the average price as the fair market value.
What if it is your image that has been turned into a meme?
Consider whether you might be able to turn the meme into a form of advertising for your own business. You will want to decide if you think it is satire or parody. You will also want to decide if you think those that created or are sharing the meme are making money, even indirectly, from your work. Is it worth the time and effort to go after those that have used your copyrighted image! Take a look at the questions I posed to those who receive a take-down or pay up letter and see how you would answer these as the copyright owner. In any case, you will want to talk to an Attorney about the contents of any take-down or pay up letter you might consider sending to the both the creator and anyone who publishes a meme that includes your copyrighted image.