By: Vicky Ludas Orlofsky

Based on “I Haz Rights! Memes and Fair Use,” originally posted on the Stevens Library blog.

Disclaimer: The following is for informational purposes only, and is not to be taken as legal advice.

Internet memes proliferate online. They catch on and spread via social media because they’re funny or they hit a nerve. Often, cats are involved. In using images taken from creative works or private life, memes show how copyright law intersects with issues of internet use and privacy.

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 The Selfish Gene (1976). Memes are the units that transmit ideas, behaviors, styles and usage within a culture through a variety of media, like nursery rhymes passed down from parent to child. Says Dawkins, “[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.”

The growth of the internet led to a new usage of the word (the meme of “meme”!) by Mike Godwin in Wired (1994), as an image or video that spreads via social media and other means “virally,” a term Dawkins also used to describe how memes replicate. Know Your Meme is a crowdsourced database of popular memes, owned by a company that created many early memes. Meme histories are tracked from first appearance, providing a reference of viral memes.

Memes and Copyright

Image-based memes involve, primarily, an image created by somebody. Sometimes the meme creator is also the image creator, but often, when involving movie stills or images of celebrities, the image’s copyright is owned by someone else. American copyright law gives creators the exclusive rights of reproduction, modification, distribution, performance, and display. The viral spread of a meme infringes on theses protections as the original image is modified and then displayed, distributed and reproduced when posted and reposted.

However, within copyright law exists the doctrine of fair use, which allows for use of a copyrighted work in the creation of new work without permission, as long as the use fits within certain parameters. A legal finding of fair use takes into account the following factors:

• The purpose of the use,
• 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, including criticism and commentary, parody, journalism, education, and research.

When it comes to memes, an important issue is the amount used of the original work. In First World Problems: A Fair Use Analysis of Internet Memes (2013), Ronak Patel says the amount of the work used in the meme probably supports the meme creators if the image was a still of another work, usually making up a small percentage of the original, but not if the original work was a photograph in which the whole of the work was being used. Stacey M. Lantagne expands on this in Famous on the Internet: The Spectrum of Internet Memes and the Legal Challenge of Evolving Methods of Communication (2017), in which she identifies use ranging from “static,” a relatively straightforward reproduction of an image, to “mutating,” in which the role of the internet is directly responsible for the meme’s alteration from the original to the point that “[m]utating memes, because of their unique characteristics, are more like ideas,” thus unprotected under copyright. Dawkins acknowledged this point in 2013 when he observed that internet memes, unlike genes, were actively manipulated by human creativity to appear different from the original.

Lantagne and Patel agree on the inability of copyright law to fully address the subject of memes, given their cultural importance as what Lantagne calls “pure engines of expression with their own symbolic vocabulary” while also relying, in Patel’s words, on “massive unauthorized copying” to attain such importance.

Memes and the Law

The original content creator, meme creator, and subject of the image/meme may all have conflicting ideas about the value of the meme, which can often lead to legal disputes. Know Your Meme must sometimes take down posts due to cease-and-desist letters from copyright holders due to the Digital Millennium Copyright Act (DMCA).

Similarly, the DMCA was used to quash parodies of the German World War II movie “Downfall.” 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 the parodies might have been considered fair use.

When memes or the subjects of a meme are used for commercial purposes without permission, the meme creator may sue, as the effect of the commercial use on the market value of the original meme usually prevents a finding of fair use. In 2013, the owners of the cats featured in the “Nyan Cat” and “Keyboard Cat” memes won a lawsuit against Warner Bros. and 5th Cell Media for respectively distributing and producing a video game using images of their cats.

Memes and Privacy

Meme creators and posters have been sued for using people’s images without permission, especially those who were not already public figures. In 2003, the parents of the unwilling star of the “Star Wars Kid” video sued their son’s classmates for posting the video online. Though the suit was settled, the video did not disappear, and the Star Wars Kid learned to deal with his fame.

In 2016, the parents of another unwilling subject sued the image’s creator, a news organization for publishing the image in a story about it, and a dancer on the show “Dancing With the Stars,” who the suit contended contributed to the image’s spread and the subject’s emotional distress by reposting the image with negative comments on social media. The photographer and news organization settled, but the dancer’s motion to dismiss was denied. Lantagne notes that if memes are considered a form of communication, they are also subject to the limits placed on speech including the rights of others to privacy.

Memes and You

Image-based memes are easy to create and easy to spread, though whether they will go viral is never a given. If you create or post one, remember to pay attention to the source of the image. 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. When you see a meme going around, give a thought to the subject of that meme image, whose life may forever be changed.

 

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Vicky Ludas Orlofsky has been the Instruction & Scholarly Communication Librarian at Stevens Institute of Technology in Hoboken, NJ, for more than five years. She has long had a personal and professional interest in issues of copyright, user privacy and intellectual freedom, which has informed her approach to instruction and reference. She lives in New Jersey with her family, and in her spare time, such as it is, enjoys bakeries, reading, and bullet journaling.