It’s My Image, and I Can Sue if I Want To: Examining Copyright Issues That Affect Visual Memes
In recent years, the intellectual property issues that surround meme culture have become increasingly pertinent. Current copyright laws do not capture the nuances that exist in the visual meme landscape, which makes it difficult for copyright holders and meme creators to understand their rights. Despite this, some copyright holders have been motivated to take legal action against specific uses of their content. This blog post aims to (i) highlight one way of defining the differences between visual memes; (ii) explain how fair use affects each type of meme; and (iii) discuss two cases where a copyright holder asserted their rights over illicit uses of their content.
Types of Visual Memes
According to Professor Stacey M. Lantagne of the University of Mississippi School of Law, visual memes can be separated into two categories: mutating memes and static memes.[1] Static memes can be described as mere reproductions of visual images. These memes may slightly alter or assign new meaning to the original image, but they largely keep the new image within its original context. An example of a static meme is the series of “Advice Animals” images that quickly spread throughout the Internet in the early 2010s.[2]
Mutating memes can be described as “visual images that have morphed beyond their origin to act as their own form of communicative shorthand.”[3] In other words, these images have been given new meanings by people other than the subject or the creator. These new meanings become altered and tailored to countless, unique circumstances. An example of this phenomenon can be seen in the recently popular “Woman Yelling at a Cat” meme.[4] The meme consists of two side-by-side images. The first is a still image from an episode of “The Real Housewives of Beverly Hills,” and the second is an image of a cat that was uploaded to the social media platform, Tumblr, by one of its users.[5] Though these images existed independently of one another, they were eventually placed side-by-side by Twitter users.[6] A little over a month later, the combined images spread to other social media websites[7], where they became popular through various uses of object-labeling.[8]
Fair Use Issues
Due to the nature of the Internet, especially with regard to social media platforms, the copyright holders and the subjects of memed content have had great difficulty in acquiring and enforcing their intellectual property rights. The biggest obstacle that copyright holders face with regard to content protection is the fair use doctrine.[9] When applied to each type of visual content mentioned above, it seems as if fair use offers more protection to static works than to mutating works. This is largely due to the weight that courts have given to the “transformative” nature of the first factor.[10] Mutating memes tend to be more transformative than static memes, as they typically add different meanings than the ones ascribed to original images.[11] Static memes, by nature, tend to be less innovative in their use.[12] However, it is impossible to predict how a court may rule on the transformative nature of any visual meme.
Why Sue?
Despite the uncertainty that surrounds the soundness of fair use arguments, some copyright holders choose to take legal action against individuals who use their content. Though copyright holders may do so for a variety of reasons, some of the more high-profile cases have involved instances in which the copyright holder disapproved of the meme user’s ideologies.
One of the most recent cases of this type concerns the “Success Kid” meme. The visual image, sometimes referred to as “I Hate Sandcastles,”[13] depicts a baby on a beach, staring into a camera. The child has a smug look on his face, and he is clenching a fist full of sand, as if he were celebrating good news. The child’s mother, Laney Griner, posted the image on her personal Flickr account in 2007.[14] The image eventually made its way to social networking sites, where it became a viral sensation.[15] Griner, much like other copyright holders of memed content, did not try to fight every use of her image that appeared online. However, a recent use of her image by U.S. Representative Steve King inspired her to seek legal recourse.
Earlier this year, Representative King used the Success Kid image to support his re-election campaign.[16] The image appeared on a post for campaign donations, as well as on King’s website. Griner has been very outspoken about her disapproval of King and his platform, and so she decided to prevent him from using her image.[17] Speaking exclusively to the copyright issues of this case, it is likely that the legality of King’s use will depend largely on the transformative nature of his alteration.
This case echoes sentiments brought forth in the Pepe the Frog lawsuit of 2018. Pepe the Frog, a mutating meme, was originally created in 2005 by Matt Furie for a comic series.[18] In 2017, Furie began issuing DMCA takedown notices to alt-right websites that used began using the image to support their causes.[19] Furie had initially been indifferent about the various uses of his content, but the consistent adoption of his work in spaces that he did not agree with motivated him to take legal action.
Footnotes
