Lil Bub
Disclaimer: The following is for informational purposes only, and is not to be taken as legal advice. If you are being sued for creating or posting a meme, consult a lawyer!
Introduction
Internet memes are everywhere: if you use social media to any degree, chances are very good you have seen a few of these go around. They catch on and spread because they’re funny, or they hit a nerve. Often, cats are involved (like Lil Bub, seen above). Wherever they come from, image memes are based on certain foundations, usually incorporating recognizable images and/or text, to the point that the copyright of the original work comes into play. However, the doctrine of fair use exists as a way to give non-copyright holders some ability to reuse the works of others, and memes are a great example. In honor of Fair Use Week 2016, we explore the topic of memes and fair use.
Memes
Merriam-Webster defines “meme” (pronounced “meem”) as “an idea, behavior, style, or usage that spreads from person to person within a culture,” originating in the same root as “imitation.” Richard Dawkins is credited as having coined the term in his 1976 book The Selfish Gene. Memes are the units that transmit ideas, behaviors, styles and usage within a culture through a variety of media, such as nursery rhymes that are passed down from parent to child, or styles of fashion. Dawkins notes, “[j]ust as genes propagate themselves in the gene pool by leaping from body to body via sperms or eggs, so memes propagate themselves in the meme pool by leaping from brain to brain via a process which, in the broad sense, can be called imitation” (2006, p. 192). The greater “psychological appeal” an idea has, the faster and wider it will spread from brain to brain.
Since the initial publication of his book, the development of the internet has led to the creation of a new form of meme and usage of the word (the meme of “meme”!), as an image or video that spreads an idea, behavior, style or usage via social media and other means. Once a concept has gone viral, a word also used by Dawkins when describing how memes replicate, it has earned the designation of “internet meme.”
Popular memes include image macros (combinations of image and text), or videos of people participating in activities such as dumping ice on their head or lying completely flat on the road. A good database of memes is Know Your Meme, owned by the same company that had a lot to do with the creation of the internet meme, Cheezburger (the home of LOLcats, whose initial catchphrase was “I can has cheezburger,” an example of which is seen below). Know Your Meme collects user-submitted memes from around the internet, and then users and editors research the origins of those memes back to their first appearance and other notable moments.
Merriam-Webster defines “meme” (pronounced “meem”) as “an idea, behavior, style, or usage that spreads from person to person within a culture,” originating in the same root as “imitation.” Richard Dawkins is credited as having coined the term in his 1976 book The Selfish Gene. Memes are the units that transmit ideas, behaviors, styles and usage within a culture through a variety of media, such as nursery rhymes that are passed down from parent to child, or styles of fashion. Dawkins notes, “[j]ust as genes propagate themselves in the gene pool by leaping from body to body via sperms or eggs, so memes propagate themselves in the meme pool by leaping from brain to brain via a process which, in the broad sense, can be called imitation” (2006, p. 192). The greater “psychological appeal” an idea has, the faster and wider it will spread from brain to brain.
Since the initial publication of his book, the development of the internet has led to the creation of a new form of meme and usage of the word (the meme of “meme”!), as an image or video that spreads an idea, behavior, style or usage via social media and other means. Once a concept has gone viral, a word also used by Dawkins when describing how memes replicate, it has earned the designation of “internet meme.”
Popular memes include image macros (combinations of image and text), or videos of people participating in activities such as dumping ice on their head or lying completely flat on the road. A good database of memes is Know Your Meme, owned by the same company that had a lot to do with the creation of the internet meme, Cheezburger (the home of LOLcats, whose initial catchphrase was “I can has cheezburger,” an example of which is seen below). Know Your Meme collects user-submitted memes from around the internet, and then users and editors research the origins of those memes back to their first appearance and other notable moments.
LOLcat
Memes and Copyright
Image macro internet memes are a combination of image and text, such as the LOLcat meme above. Sometimes the originator of the meme is the one who took the picture and thus the copyright owner, but often, when involving movie stills or images of celebrities, the images’ copyright is owned by someone else. Copyright law gives to creators the following exclusive rights when it comes to the work they create:
Image macro internet memes are a combination of image and text, such as the LOLcat meme above. Sometimes the originator of the meme is the one who took the picture and thus the copyright owner, but often, when involving movie stills or images of celebrities, the images’ copyright is owned by someone else. Copyright law gives to creators the following exclusive rights when it comes to the work they create:
- Reproduction
- Modification
- Distribution
- Performance
- Display
Anyone looking to do any of these actions with a particular copyrighted work must get permission from the copyright owner. The viral spread of an image macro infringes on the originator’s copyright in that it consists of modification of the original image, and display, distribution and reproduction in posting the meme and contributing to its virality. However, alongside copyright exists the doctrine of fair use (U.S. Copyright Act, Section 107), which allows people to make use of a copyrighted work without needing permission, as long as it fits within certain parameters. A legal finding of fair use takes into account the following four factors:
- The purpose of the use (commercial? educational?),
- The amount of the work to be used,
- The effect of the use on the market for or value of the original work, and
- The nature of the copyrighted work.
There is no official definitive answer for whether a use can be considered fair, as every case must be judged on its own merits, but there are some types of use generally allowed under fair use:
- Criticism and commentary (ex: using a clip of a movie in a video by a movie critic)
- Parody (ex: Weird Al Yankovic’s song “Foil,” a parody of Lorde’s song “Royals”)
- Journalism (ex: showing a clip of an event in a news show)
- Education (ex: distributing an article to students for a class)
- Research (ex: collecting memes to display in the database “Know Your Meme”)
In an article for the UCLA Entertainment Law Review, Ronak Patel notes that the fair use factor of the nature of images and clips from a copyrighted work such as a television show or movie tends to favor the copyright holder, as the show or movie was not created to be replicated online with funny phrases attached (2013, p. 252). The amount of the work used in the meme probably supports the meme creators if the image was a still of a show or movie, usually making up a small percentage of the original, but could work against them if the original work was a photograph in which the whole of the work was being used. The purpose of the meme usage often supports the meme creator, as memes in their transformation are key to the spread of cultural phenomena. The wider a meme spreads, the more it becomes recognizable as a meme, as opposed but also in addition to the original work. However, this means that “[m]emes facilitate the consumption of copyrighted works in a way that would not otherwise be possible but for massive unauthorized copying, because it is through such copying that the meme achieves instant recognizability” (p. 254). They are, in fact, infringement, which goes to the negative effect of the meme on the market value of the original work. But, Patel argues, the fact that memes spread the way they do (through reproduction, distribution, display, and modification, which are all part of copyright) shows that there must be some infringement possible in a country’s copyright law to facilitate this spread.
Patel concludes that memes should in fact be protected by fair use because “they effectuate cultural interchange and the productive use of copyright, and because protecting memes responds to a market failure - i.e. the inability for memes to develop without copyright infringement” (p. 256). Memes are valuable in their role in spreading cultural phenomena, and should be allowed to proliferate as such; the fact that copyright law seems to indicate otherwise is a failure of the law, not of memes’ right to exist.
Memes and the Law
As might be expected, several memes have been involved in legal disputes, especially if they are used commercially. One example of fair use in general and in memes specifically is that of Shepard Fairey’s poster for the Obama campaign in 2008, which was based on a photograph taken by a photographer for the Associated Press (AP), Mannie Garcia (Kennedy 2011). Fairey’s original image incorporated symbols of his own career as a street artist, but was later redesigned to match the needs of the Obama campaign, who had commissioned him to create it as a campaign poster (seen below).
Original image
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Obama Campaign Poster by Shepard Fairey
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Example of a parody “Hope” meme
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The Hope poster became widespread both in physical form -- posters, merchandise, limited edition prints -- and online, and inspired a number of parodies, such as the one seen above of Star Wars character R2-D2 (which is also a copyrighted image). After the election, the Fairey poster was accepted into the collection of the National Portrait Gallery. Because of this attention, it was discovered that the AP was responsible for the original photograph, and the company then sought compensation from Fairey over the use of the image in the poster and related merchandise. Fairey countered that the poster was transformative and thus the poster counted as fair use, claiming that the purpose of the reuse, the poster, outweighed the fact that the amount of the original work used was all of it. Fairey preemptively sued the AP, though it was later discovered he had destroyed documents showing he was aware of the origin of the image, and the parties settled out of court (Kennedy 2011).
There are many examples of memes involved in legal disputes, though not always lawsuits. Sometimes these are brought by the copyright holder, such as in the case of the German World War II movie “Downfall” ( “Downfall”/Hitler Reacts at Know Your Meme) from which a clip of Hitler was copied and the subtitles edited for humorous purposes on a variety of topical subjects. In 2010, the movie’s production company, Constantin Films, started pulling these parodies from YouTube, to which meme creators had little recourse. However, Constantin Films did not sue anyone, so it is unknown whether a judge would have found in their favor or if the parodies would have been considered fair use (Sydell 2010).
Meme creators and posters have been sued for using people’s images without permission. The parents of the unwilling star of the “Star Wars Kid” video (“Star Wars Kid” at Know Your Meme) sued their son’s classmates for posting the video online. Though the family won the suit, the video did not disappear, and the Star Wars Kid learned to be comfortable with his surprise fame. That suit involved the people directly responsible for posting the meme, but earlier this month, a star of the television show “Dancing With the Stars” who posted a meme featuring a young girl with Down syndrome was sued by the girl’s parents (Couch and Gomez 2016). While the dancer was not the original creator of the image, the girl’s parents claimed that he was responsible for the spread of the image. This suit has yet to be resolved but it will be interesting to see what the court decides about how liable a person is for posting a meme, being part of the meme’s spread, rather than its creation.
Finally, when memes or the subjects of a meme are used for commercial purposes without permission, the meme creator will likely sue, as the effect of the commercial use on the market value of the original usually prevents a finding of fair use. The owners of the cats featured in the “Nyan Cat” (“Nyan Cat” at Know Your Meme) and “Keyboard Cat” (“Keyboard Cat” at Know Your Meme) memes won a lawsuit against Warner Bros. and 5th Cell Media for respectively distributing and producing a video game using images of their cats. The cat owners claimed that Warner Bros. and 5th Cell Media violated both copyright and trademark rights of their memes, and won the suit; while the video game continued to use images of the two cats, that use was to be licensed and the cat owners paid for the privilege (Van Syckle 2013). Copyright and trademark infringement were also the reasons cited by the owners of the cat and company known as Grumpy Cat (“Grumpy Cat” at Know Your Meme) when they sued a coffee company that used the image of the cat in question and registered the domain name “grumpycat.com.” The suit, filed in December 2015, has yet to be resolved (Graham 2015).
Business Cat
Conclusion: Memes and You
Image macros are easy to create and easy to spread, though whether they go viral or not is never a given. If you create or post one, remember to pay attention to the source of the image or video you use. Remember -- just because an image shows up on Google Images does NOT mean it’s not protected by copyright. Your best bet is to start with an image or clip that is already labeled for reuse or is in the public domain, meaning out of copyright protection altogether. Google Images search tools provides such a filter, or try the Creative Commons search for work licensed for reuse via Creative Commons licenses. If you see a meme that makes a claim to be factual but offers no source for its information (these are especially prevalent during the heightened political tension of the presidential campaign), look at these very critically. If you can’t figure out where the data came from, don’t repost it! Pithiness does not equal accuracy, and the spread of bad information is never a good thing. If you ever have a question about a meme, ask a librarian! If you need legal advice, though, ask a lawyer.
You are a user of the works of others, and you may also be a creator of works used by others. You have rights as both a user and creator, and the more you know about these rights, the better able you’ll be to add to the ongoing flow of information, whether it’s academic research or a cat meme.
Image macros are easy to create and easy to spread, though whether they go viral or not is never a given. If you create or post one, remember to pay attention to the source of the image or video you use. Remember -- just because an image shows up on Google Images does NOT mean it’s not protected by copyright. Your best bet is to start with an image or clip that is already labeled for reuse or is in the public domain, meaning out of copyright protection altogether. Google Images search tools provides such a filter, or try the Creative Commons search for work licensed for reuse via Creative Commons licenses. If you see a meme that makes a claim to be factual but offers no source for its information (these are especially prevalent during the heightened political tension of the presidential campaign), look at these very critically. If you can’t figure out where the data came from, don’t repost it! Pithiness does not equal accuracy, and the spread of bad information is never a good thing. If you ever have a question about a meme, ask a librarian! If you need legal advice, though, ask a lawyer.
You are a user of the works of others, and you may also be a creator of works used by others. You have rights as both a user and creator, and the more you know about these rights, the better able you’ll be to add to the ongoing flow of information, whether it’s academic research or a cat meme.
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More on Fair Use:
- U.S. Copyright Office: “More Information on Fair Use” and the Fair Use Index of legal cases, including several involving the internet
- Stanford University Libraries: Copyright & Fair Use - lots of information here on copyright law, the doctrine of fair use, and how to ask for permission to use copyrighted works
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References
Couch, A. and P. Gomez. (2016, February 1). Val Chmerkovskiy sued for allegedly posting meme mocking girl with Down Syndrome [blog post]. People. Retrieved from http://www.people.com/article/dancing-stars-val-chmerkovskiy-sued-posting-meme-mocking-girl.
Dawkins, R. (2006). The Selfish Gene (30th anniversary edition). Oxford: Oxford University Press.
Goldstein, A. (2013, June 21). Technology: Internet memes pose legal questions [blog post]. Inside Counsel. Retrieved from http://www.insidecounsel.com/2013/06/21/technology-internet-memes-pose-legal-questions?slreturn=1454530884.
Graham, L. (2015, December 16). Grumpy Cat sues coffee maker over copyright [blog post]. CNBC. Retrieved from http://www.cnbc.com/2015/12/16/grumpy-cat-sues-coffee-maker-over-copyright.html.
Kennedy, R. (2011, January 12). Shepard Fairey and the A.P. settle legal dispute. The New York Times. Retrieved from http://www.nytimes.com/2011/01/13/arts/design/13fairey.html?_r=1.
Patel, R. (2013). First world problems: A fair use analysis of internet memes. UCLA Entertainment Law Review 20(2): pp. 235-256. Retrieved from http://escholarship.org/uc/item/96h003jt.
Sydell, L. (2010, April 23). YouTube pulls Hitler “Downfall” parodies. All Things Considered. Retrieved from http://www.npr.org/templates/story/story.php?storyId=126225405.
Van Syckle, K. (2013, September 26). Keyboard Cat and Nyan Cat come out ahead in lawsuit against Warner Bros [blog post]. New York Magazine. Retrieved from http://nymag.com/daily/intelligencer/2013/09/keyboard-cat-nyan-cat-win-warner-bros-lawsuit.html.
World Intellectual Property Review. (2013, January 3). Internet memes: copyright licensing in an IP minefield [blog post]. World Intellectual Property Review. Retrieved from http://www.worldipreview.com/article/internet-memes-copyright-licensing-in-an-ip-minefield.
Grumpy Cat
