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So you have a popular Instagram account on which you post original memes for mass consumption and potential monetization. Everything is going great: you’re racking up thousands of followers per day, each post getting hundreds of thousands of likes—life is good. You have managed to create a career for yourself just by being Very Online and humorous, and we are all jealous of you. Good job.
And then someone steals one of your memes for their own page, and they delete your watermark, and try to pass off your meme as their own. You get mad and call them out. They respond by telling you “this is the internet.”
Intellectual property jurisprudence has yet to really confront the internet’s ecosystem of decentralized content creation. But you, meme-maker, are smarter than that, and you want to educate as much as possible on the industry you have chosen. Below, we discuss some of the important legal doctrines to meme-makers, and cases that may be applicable.
Let’s Talk About Fair Use
The most important piece of law to meme-creators is the Fair Use Doctrine. Part of the Copyright Act, the fair use doctrine codifies into law the idea that you can, in fact, take someone’s original work without permission, and lays out four factors to determine when doing so is acceptable.
First, some background: The idea of copyright is, somewhat surprisingly, actually written into the Constitution. Article 1, section 8 tells us that it is our government’s duty to “promote the Progress of Science and useful Arts.” And, as the Supreme Court noted in seminal fair use case Campbell v Acuff-Rose, it was apparent even to our founding fathers that some idea of fair use is necessary to fulfill the purpose of promoting arts and sciences. The ability to appropriate some of a copyrighted original work incentivizes creative output, something most societies want to encourage. Like it or not, memes have become a way for this generation to engage in discourse and create a community.
Most memes are probably covered by the fair use doctrine. Here’s why:
As mentioned above, there are four factors that courts weigh when determining if appropriation of a prior work without permission is acceptable.
(1) Purpose and character of the derivative work
This is the most important part of any question of fair use. And it’s a broad question: “Purpose and character” has long been held to refer to the degree of transformation between the original and derivative work.
The idea of transformation really comes down to two big questions: Has the material you took from the original work been transformed by adding new expression or meaning? And was value added to the original work in the form of new insight or meaning? To put it more simply: Have you done something other than republish or repackage the original work? If you’ve added new insight or meaning to an original work, you’re probably in the clear.
For instance, the artist Jeff Koons was sued by a photographer after repurposing one of his images in a collage. The original photograph had been for a spread in a fashion magazine showing off the trends of the season; Koons’ work, in contrast, was meant to be artistic commentary about capitalism and material consumption. Because Koons elevated the original work with new meaning, the court found that his use of the photograph in his collage had been fair.
(2) Nature of the original copyrighted work
— dev, a good girl (@bummermaid) August 25, 2017
This one is easier. “Nature of the work” generally just refers to whether a copyrighted work is factual or creative. However, because memes generally use actual photographs, determining when a photograph is factual or creative gets a little bit trickier.
— David Steele (@David_C_Steele) June 1, 2018
The “boyfriend looking away” meme, for instance, is more likely to be considered a creative work because the stock photographer conceptualized and staged the photo himself. But the photographer who snapped LeBron freaking out at J.R Smith during the NBA finals would probably be considered to have created a factual work, because he was simply engaged in what one court has termed “quintessential photojournalism.” You have much more leeway to copy from a factual work than you do from a creative one, which is a helpful fact to keep in your back pocket for the next time an Instagram commenter accuses you of infringement.
— Nat (@natt0) June 1, 2018
(3) Amount and substantiality of original work used in the derivative work
For meme purposes, this factor is probably the least important, because to create a meme you are generally using the entirety of a photograph. But fair use cases have been both won and lost on this factor, so we’re going to talk about what “amount and substantiality” of the work actually means.
The most important thing to know is that it does not only refer to size. Think of Grammy-award winning hit “Smooth” by Carlos Santana ft. Rob Thomas; even just using Santana’s infamous guitar intro (itself only a fraction of the song) would be infringement, because it’s such an integral piece of the song, and so instantly recognizable. This is what “amount and substantiality” refers to. In general, however, the less you use of a copyrighted work, the more likely it is to be considered fair.
However, this rule—less is more—is not necessarily true in parody cases. A parodist is permitted to borrow quite a bit, even the heart of the original work, in order to conjure up the original work. That’s because, as the Supreme Court has acknowledged, “the heart is also what most readily conjures up the [original] for parody, and it is the heart at which parody takes aim.”
(4) Effect on the market
If I, a lowly law student, had to guess, this element will be of the utmost importance if meme infringement ever makes its way to the courts. The question this factor asks is whether your use has deprived the copyright holder of potential income or undermines a new or potential market for the copyrighted work.
Let’s say you run a meme account that’s fairly popular, but hasn’t reached the level of virality as, say, @mytherapistsays or @beigecardigan, both accounts that boast millions of followers and have thus been able to monetize. They steal one of your memes, because their income is contingent on being able to continually post popular content. By posting your meme to their account, they have likely denied you of the ability to monetize your own content, because the followers you would otherwise gain instead went to the already-established account.
But because the market for decentralized content is still so nebulous and unestablished, you may be best leaving this factor off the table when you enter into a comment war about fair use.
So Why Are Memes (Probably) Protected But Reposting Isn’t?
This is the question at the heart of the fair use doctrine. When you, dear meme-creator, use a photo that someone else has taken, you’re not simply reposting the photo to your account. You’re overlaying text on the photo or altering it in some way—all things that transform the original nature of the work and will thus likely qualify as fair use. But someone who then takes an already-created meme and posts it without any transformation is simply reposting—there is no commentary or criticism or parody. Simple reposting adds no additional expression to an original work.
And remember, when I say ‘transformation’ I don’t mean simply running the photo through Huji or VSCO—I mean that the original work has to have been transformed to a significant degree. Recoloring a cool photo that a famous photographer captured and claiming it as your own is not fair use, because the purpose of both photographs was realistic depiction. But when @notallgeminis or @youvegotnomale use a photo, and then add their caption, they’ve transformed the photograph from a realistic depiction to snarky societal commentary, even though they didn’t take the photo themselves.
But….
There’s always a but. A federal court in Virginia recently handed down a decision that mere reposting of an image is considered fair use. There, a photographer had taken a time-lapse photo of Washington, D.C.’s Adams Morgan neighborhood, and a film festival found it online and used it on their website to advertise the festival. The decision has been roundly criticized by copyright experts, many of whom have simply said that the judge just didn’t apply the fair use doctrine correctly. But this is a decision that’s out there floating around, and though it’s not binding law the way a Supreme Court case would be (unless you live in the Eastern District of Virginia, that is), it’s still important for you know, because there’s always a chance that someone will repost without attribution, get called out, and then cite that case.
But now you know better than that! And the next time someone tells you “this is the internet, bro,” you know how to set them straight.
Image credit: Wikimedia Commons