The internet has allowed us to communicate and share knowledge on an unprecedented scale, ushering in a new era of access to information. It has also provided an unprecedented ability to share funny captioned cat pictures—memes. From “Good Guy Greg” to “Philosoraptor” memes, memes are a cultural phenomenon.
While exactly what constitutes a meme can be a bit hard to define, they are generally thought of as a cultural touchstone which spreads from person to person throughout a culture. While the concept of a meme preexists the modern internet, the internet has allowed memes to spread to the world with incredible speed.
As you might expect from something so widespread, common memes have given rise to lawsuits and questions of law—especially when it comes to ownership of a meme. About a year ago there was a bit of a kerfuffle over the copyright status of the popular meme "socially awkward penguin." The original photo was taken by a photographer working with National Geographic. However, the rights in the photo have since been purchased by well-known photo aggregator Getty Images.
Getty Images went after a German company, Get Digital, for using the photo as part of an advertisement featuring the penguin meme on their website. Getty forced a twice as high as the norm licensing agreement out of Get Digital for their use. They also demanded confidentiality for the agreement, but Get Digital refused and went public to the media.
Memes have also led to lawsuits in the U.S. For instance, in 2013, the creator of the Nyan Cat meme sued the creators of the video game Scribblenauts for copyright and trademark infringement over their use of the image of “Nyan Cat”—a cat with a toaster strudel for a body.
While it’s not likely you’re going to be sued for the memes you post to Facebook, it is far from impossible to get in hot water over violating the intellectual property rights in a meme. So, with this in mind, what intellectual rights can somebody have in a meme?
Where Meme Meets Copyright
Copyright protection applies to original works fixed in a tangible medium and prevents others from—among other things—copying, distributing, or creating derivative works (works based off the original work). Memes are often superimposed on copyrighted pictures taken from material such as movies or videogames. The creators of many common memes—such as “Nyan Cat,” “Grumpy Cat,” and “Keyboard Cat”—have applied for and registered a copyright in the pictures underlying the memes.
Where a person simply applies a caption over the top of an existing picture, it is extremely likely that this use infringes a copyright by making a derivative work. So why aren’t copyright lawsuits against people posting memes more common? There are three main reasons.
The first two reasons are purely practical. One, it just doesn’t make sense from a fiscal standpoint. It takes quite a bit of time and expense to identify a person posting a meme on the internet, if identification is even possible. Even if you can identify them, it seems unlikely that the damages would be sufficient to cover the costs of a lawsuit or that they would have the money to pay such damages. It’s much more cost-efficient to just make a DMCA takedown request. Two, the public backlash against copyright lawsuits against single persons tends to be a bit of a PR nightmare. There have even been incidents of death threats after a copyright claim was brought regarding the meme Nyan Cat.
Finally, the most common deterrent to suits is purely legal—the fair use defense. Fair use provides a defense to certain limited, transformative uses of a copyrighted work. The defense is extremely fact specific, so much so as to make it nearly impossible to declare something fair use without knowing the exact circumstances of the particular use. In making the determination, courts balance four quite complicated factors: (1) the purpose and character of the use (was it commercial, educational, transformative?); (2) the nature of the work (eg. fictional v. non-fictional); (3) how much of the work was used and how important was the part used; and (4) how the use effects the market for the copyrighted work.
Whether a work is considered transformative, a fact that makes the first factor of a fair use analysis weigh particularly heavily in favor of fair use, look to a number of things. First, where the changes add new expression or meaning they are more likely to be transformative. Second, where the changes add new value by creating new information, aesthetics, insights or understandings—most notably through parody or criticism—this also weighs in favor of the use being transformative.
Before we get into the fair use treatment of memes, be aware that this is arguably the most complex area of intellectual property law. Treatise have been written on each of the four factors mentioned above. What’s more, no one factor is determinative. While a commercial use weighs heavily against fair use, it isn’t enough to definitively bar something from fair use or vice versa.
The meme you post on Facebook is likely not making money; this means that the work is not commercial. This doesn’t mean your use is outright fair use, it just means that this factor does not cut against your use being fair use. In circumstances where a party is making money using a meme containing a copyrighted image, such as the Scribblenauts case discussed above, fair use is much less likely.
Most memes use the entirety of the copyrighted image, meaning that they take all or most of the copyrighted work. This means the third factor of the test will generally cut against a use. The effect on the market for the work is an odd factor in that the viral nature of memes creates much of the market for the work. The majority of the market is likely in licensing the meme photo to would be advertisers. Thus, this factor would likely go hand in hand with the commercial factor.
Finally, one must look to how transformative the meme is compared to the copyrighted picture. So important is the factor of transformativeness that courts have held that the more transformative a use is, the less significant other factors such as commercialism become. A meme usually simply adds captioned text over the top of the copyrighted work. This certainly adds meaning beyond the original picture. However, only in a very minimal way. Thus, while most memes are arguably transformative, the factor does not weigh so substantially as to overshadow other elements to be considered.
Overall, a non-commercial use of a meme is likely to qualify as fair use. However, as is becoming more and more common, where a meme is used in advertisement or as part of a commercial product the fair use argument becomes much weaker.
Where Meme Meets the Rest of Intellectual Property
Be aware that many owners of meme photos have sought and received trademark protection as well as copyright. This means that using a meme on a product or for advertising could confuse a consumer as to source or sponsorship of a good—opening you up to a claim of trademark infringement.
What’s more, where a meme includes a picture of a person, the right of publicity—the right of a person to not have their name or likeness used commercially without their permission—is also implicated and could lead to lawsuits.
Viral memes are here to stay and their very nature makes them extremely attractive as a way to increase visibility for a product. However, be careful with how you wield the power of the meme. It’s a fine line between a fun Facebook post and a Facebook post promoting a blog that could open you up to a lawsuit.
Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney at Law