We’ve all seen the photo. Some of us even made some of these memes for personal and business use.
The big question in the photography community today – does creating a meme with the Bernie Sanders sitting cut out violate copyright law?
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:
- Whether the person creating or sharing the meme make revenue (even indirect revenue) from sharing the meme
- The extent to which the copyright holder’s work has been used or copied
- Whether the nature of certain TV and media characters makes them famous and susceptible to other uses
- 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!
The best way to ride the wave and avoid any legal issues?