Are memes going to be the newest battleground for copyright litigation? Recent events may indicate that copyright infringement suits over the use of memes are on the rise.

On January 27, 2020, Laney Griner, the mother of the “Success Kid” Sam Griner, filed a cease and desist letter seeking to prevent Representative Steven King (R-Iowa) from using the “Success Kid” meme in his political campaign ads. The ad that prompted this action was an image of the “Success Kid” superimposed over an image of the U.S. Capital. The phrase “FUND OUR MEMES!!!” was written across the top of the photo. King posted the ad on Twitter as an attempt to get supporters to donate to his campaign. Griner responded to the tweet and said, “Just so it’s clear–I have/would never give permission for use of my son’s photo to promote any agenda of this vile man or that disgusting party.”

Griner obtained copyright protection for the meme in 2012. Afterwards, Griner obtained paid licensing agreements with companies—including Coca-Cola, General Mills, and Microsoft—that allowed the companies to use the meme in their advertisements. Griner even allowed the Obama Administration to use the meme in a 2013 promotion for immigration reform.

The question that people are inclined to ask is whether a meme can legally be subject to copyright protection. King’s ad, however, uses only the photo of Sam Griner, not the full meme. The photo of Sam Griner is already subject to copyright protection. Therefore, different questions are required to determine whether King’s use constitutes infringement. Researchers have suggested that the questions that should be asked are (1) whether the use of the photo in King’s ad violates the right of privacy of Sam Griner, and (2) whether King’s use of the image constitutes a fair use. Fair use is a doctrine that protects the reproduction of works that transform the original copyrighted work. If a work is protected by fair use, then it is not an infringement of the original copyrighted work. This doctrine is generally important when it comes to memes since most meme creators are protected from liability under fair use. Fair use protection generally attaches when a meme creator transforms the meme or make a commentary on the original meme.

If most memes fall within the protection of the fair use doctrine, then it may be a stretch to say that making and sharing memes constitutes copyright infringement. If making and sharing memes were to rise to the level of copyright infringement, a potential fallout would be the end of meme culture on the internet.

The problem with King’s use of the image is that he does not appear to be using the image as a meme—he is just using the image to help him fundraise. This lends itself to the argument that his use is not a fair use because it lacks the required transformative element that is essential to the fair use doctrine. Because this case is currently developing, it is unclear how King’s lawyers will overcome this hurdle if King plans to rely on fair use.

Griner’s action against King is not the first instance of memes being the subject of a copyright infringement suit. In 2015, the Socially Awkward Penguin meme—the intellectual property of National Geographic—was involved in multiple copyright infringement actions for the unlicensed use of the meme. Further, the website Know Your Meme publicly tracks cease and desist letters and copyright take-down requests for internet memes. Despite these prior instances of infringement, there is not a great deal of precedent governing the copyrightability of memes and the legal remedies available in the case of infringement. Given the proliferation of meme culture and social media, it is likely that the question of whether memes are considered a “fair use” of copyrighted works will be raised again.

— Sara Smith

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