In the world of memes, that trouble is coming in the form of lawsuits. Meme creators have begun suing people for copyright infringement for using their memes without permission. Last November, a jury from Sioux City, Iowa, determined that a politician named Steve King broke the law when he used the Success Kid meme in a reelection fundraising campaign. Laney Griner, the mother of the child who became known as Success Kid and the person who snapped the iconic photo back in 2007, also filed another lawsuit against a fireworks company that used the image of her son to advertise one of its products. The fireworks company settled with Griner for an unspecified amount.
Just about everyone sends an unending volley of memes to each other, and posts them to their social media channels. So does that mean that everyone needs to be as worried as Scared Hamster about getting sued?
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For the most part, the answer is no, according to associate dean for academic affairs at the Beasley School of Law Donald P. Harris. Harris explained that sharing copyrighted work on the internet without permission from the copyright owner can be acceptable under fair use guidelines, depending on the use.
For those not wanting to take a risk, Harris says there are a variety of websites containing public domain works that can be used commercially and do not require permission from their creators. A few popular examples are Unsplash, Pexels, pixabay and Wikimedia Commons.
What if that sick new meme you just created from a photo you took of your cat is starting to go viral? Should you get it copyrighted to prevent your local politician from using it in their next campaign ad without your permission? No need to panic, Harris said because it is almost certainly the case that your meme already has copyright protection.
The key question here is whether the meme was illegally appropriated by utilising a substantial or material portion of the original copyrighted work, or whether an essential aspect of the artist's original vision was substantially reproduced. The physical features of the allegedly unauthorized copy, as well as the medium of expression, may change, along with certain aesthetic variations. However, if there is any substantial imitation or copying of the original work, then the meme will be deemed to be an infringement.[1]
However, it is also important to note that obtaining the permission or consent of the owner of the copyrighted work for creation of a meme may not always be feasible, and in most of the situations, the owner of the original work may not even be known.
First Factor: Whether the purpose and/or use of the copied work is of a commercial nature. In most cases, memes are usually created for a recreational and entertainment purposes and there is no element of any commercial use or economic gain. Therefore, most of the memes satisfy the first factor of fair use doctrine. However, if any meme is created to generate revenues or for any promotional purposes without the required permissions from the owner of the copyright work, the same would constitute commercial exploitation and therefore, the memer in such cases cannot claim any defense under the doctrine of fair use.
Second Factor: Nature of the copyrighted work- Almost every meme is taken from an already published material so as to increase its relatability factor. In such case, the original author has exhausted his right of first public appearance and the memer can claim a defense under fair use doctrine. However, the defense under the fair use doctrine shall not be applicable if the memer borrows content from an unpublished work.
Third Factor: The amount and substantiality of the copyrighted work used- If the memer just takes a single joke or still from an original work such as a television show or a movie, then, substantial amount of the original work is not copied, and fair use doctrine can be applied. However, if the original work from which the content is borrowed is a single photograph or any other single frame visual artwork, then it would be considered as borrowing the entire artistic work and constitute an infringement.
However, as a word of caution, if a meme is intended to harm the society or if it violates the Right to Privacy enshrined under Article 21 of the Constitution of India, then there is no defense available in favour of the meme creator. In fact, the memer, cannot even exercise his defense of Right to freedom of speech and expression enshrined under Article 19 of the Constitution of India[3] in such cases.
The sharing of such defamatory meme by the defendant has been stopped by the court. However, it is the meme creator who should be identified at the first instance so that the meme can be stopped from being shared to a large section of society. According to The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, if the meme is against the sovereignty and integrity of India, the security of the State, friendly relations with foreign States etc., then the meme creator/first originator can be identified by the intermediaries (Facebook, Instagram etc) by a judicial order passed by a court of competent jurisdiction or other competent authorities mentioned in Rule 4(2) of the said rules.[5]
It is understood that commercial use of a meme would not come under the ambit of fair use doctrine, and the owner of the original copyrighted work can claim an infringement action against the meme creator. However, it is pertinent to note that if a corporation is creating its own meme without copying any original artistic work, then circulation of the same by third parties, even if done for commercial purposes, does not call upon any copyright infringement. Businesses are interested in utilising memes as a promotional tool. In fact, many companies have made meme marketing very essential part of its marketing campaign.
For example, Zomato has used photograph of the famous Pakistani Comedian Moin Aktar as Harmonium Chacha, for promoting and marketing purposes. In this case, the owner of the copyrighted work in the picture of the Harmonium Chacha are the producers of the film, and Zomato has used the same to promote its business.
On a day to day basis we see many companies/organizations, actively promoting their business through memes. The memes often refer to famous movie characters or pictures which have gained popularity. This kind of positive promotion helps the organization in getting more publicity, and also the owner of the original copyrighted work in getting more viewership of the said clip/scene/movie. Therefore, if the company/organization duly takes the necessary permissions from the owner of the original copyrighted work while creating memes, then both the company as well as the owner of the copyrighted work can gain benefits from the same. The same would give a positive promotion to both the parties, thereby creating a symbiotic relationship. Besides, the companies can also avoid unnecessary legal actions by relying upon such mutually beneficial relationship.
United Kingdom has implemented the EU Copyright Directive, which provides exceptions to caricature, parody and pastiche.[8] Similar to the Indian and USA laws, even UK protects the memes under the doctrine of fair use/dealing, provided the meme is not used for commercial purposes. Section 30A of the Copyright, Designs and Patents Act, 1988[9] in UK protects caricature, parody and pastiche under fair dealing.
A meme should serve the purpose of fun and entertainment to the audience without violating rights of any individual and should not be created for the motive of commercial exploitation. A copyright infringement occurs when proper authorization and consent from the copyright owner is missing on the part of the creator of such a meme. It is advisable for young creators to seek proper approvals from the owners of the work prior to utilising the same. Creation of meme for amusement is fine but if used for the purpose of business or advertising one should procure necessary consents and license from the copyright owners to avoid facing any kind of legal liability.[11]
Become a trendsetter by making original memes. Upload your own image or video and customize it easily. Trim unwanted parts, add witty meme text and sound effects in a few clicks. From reaction memes to split screen memes, you can make memes in any layout and size.
Add a twist to a classic meme. Choose from our library of meme video templates and replace the meme text with your own creative caption. You can also drag and drop to replace any images and videos from our free stock library. Adjust the timing of the video elements to make the video funnier.
Stand out from the scroll. Choose from a range of quirky font styles for your meme and add video effects like zoom and spin in our easy video editor. Play with video speeds for a humorous effect and even replace your video background.
YouTube gets many requests to remove videos that copyright holders claim are infringing under copyright law. Sometimes these requests apply to videos that qualify for copyright exceptions or seem like clear examples of fair use.
If the use of copyright-protected material in a video qualifies as a copyright exception, then the video is considered lawful and non-infringing. This is why we often ask copyright holders to think about whether copyright exceptions apply before submitting a copyright removal request to YouTube. If a copyright holder believes a video doesn't qualify for an exception, then they must provide us with an adequate explanation as to why.
In the United States, works of commentary, criticism, research, teaching, or news reporting may be considered fair use. In the EU, more limited exceptions are recognized and the use must fit into specific categories, such as quotation, criticism, review, caricature, parody, and pastiche. Other countries/regions have a concept called fair dealing that may work differently. 152ee80cbc
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