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From LOL to Lawsuit: Implications of Using Memes Online and in Advertising

Written by Kate Dachille

Memes: we’ve all seen them; some of us have even created a few. (I’m not judging. But he is.) They cheer us up when we’re feeling down, and provide a source of entertainment during a boring workday. Even companies are cashing in on the recent surge in popularity.

But memes are not all fun and games; in fact, some may present serious copyright implications (for example, Warner Brothers and 5th Cell were sued earlier this year over their use). This is mainly due to the copyright concepts of derivative works and fair use.

I-Had-Fun-Once-It-Was-AwfulUnder Copyright Law, a copyright owner has the exclusive right to make derivative works based upon the original copyrighted work.  17 U.S.C. §106(2). But what exactly is a derivative work? According to the Copyright Office, “[a] derivative work is a work based on or derived from one or more already existing works. Common derivative works include translations, musical arrangements, motion picture versions of literary material or plays, art reproductions, abridgments, and condensations of preexisting works.” In other words, if you create a copyrightable work, you are the only one who can then make alterations or modifications to the work (unless you give permission to someone else). Spoiler alert: it’s not really as cut and dry as this, thanks to the concept of fair use.

The fair use doctrine is an affirmative defense to copyright infringement, which cuts back on the exclusive rights granted to copyright owners. This means that even though the work meets the criteria for copyright infringement, the law makes an exception and allows the infringer to escape liability (and, in turn, allow their work to continue in existence). The Copyright Act considers the “use of a copyrighted work…for purposes such as criticism, comment, news reporting,…scholarship, or research” fair use (and therefore non-infringing). 17 U.S.C. §107.

The problem is that fair use is an extremely fact specific inquiry, and there is no clear formula to determine fair use at the outset. While a test has been developed by the Supreme Court to determine whether a use of a copyrighted work qualifies as a “fair use”, this four-factor test is applied on a case-by-case basis. Moreover, none of the four factors is determinative in and of itself. As such, no real overarching examples have been flagged as clearly fair use (or clearly not fair use), and cases involving memes are only just beginning to be heard by lower courts (read: this area will remain murky at best for the next few years).

What has already emerged as a tricky issue when it comes to memes and fair use is whether the meme is for commercial or non-commercial use. (This is because one of the factors from the fair use inquiry involves assessing “the purpose and character of the use, including whether such use is of a commercial nature”. 17 U.S.C. §107.) Non-commercial uses (those not for the purpose of turning a profit) push against finding copyright infringement. As such, companies that use memes in their advertising campaigns would seem to cut against finding fair use, while those using memes with no hope of profit would push towards finding fair use. But, again, this one factor does not determine fair use by itself. (Confusing, right?)

The changing landscape of copyright in the internet age coupled with the speed at which memes are being disseminated will be sure to present issues in the future, and it seems it is only a matter of time before case law will start to clear this area up. In the meantime, obtaining permission from those who own the original work seems to be the safest path.

About the author

Kate Dachille

Kathryn (Kate) Dachille is an attorney specializing in the areas of intellectual property, marketing, and advertising, with a keen interest in entertainment, sports, fashion and media. She is a graduate of the University of Richmond School of Law (J.D., summa cum laude, Intellectual Property concentration), and New York University (B.A., Economics).

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