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During lockdown, most of us likely meme our way through the dark times, to have at least something to put a smile on our face. However, not many of us ask ourself what does posting and creating memes mean in terms of copyright law.

Internet memes are not only means to have a very good laugh, and to express our frustrations, sarcasm, criticism, they have also become an important way in which companies try to resonate with their companies. As Aidan Cole at Forbes writes ”memes work for brands because they’re designed specifically for social platforms and provide value through entertainment.”[1] As memes grew in their popularity, so did their monitorization, legal issues and actions from copyright holders.

Not so funny anymore? Have you ever wondered if the meme you have posted is copyrighted, or someone stole your memes and pass them as their own? Yikes!

“Internet memes” (or simply just “memes”) are a popular piece of media that spreads from person to person via the internet, often as mimicry or for humorous purposes. These memes usually take the form of an image, GIF (moving animated picture), or video.4 What you maybe did not pay attention to, is that memes usually take preexisting content, like a screenshot of a film or television show, and add some form of commentary to appeal to a common situation or observation. Memes are analyzed in detail and case to case. However, generally, If you created the image used in the meme, the image is copyrighted and any memes created with it would likely be deemed derivative works. However, if you do not have rights to the original image then it is unlikely you would be able to obtain copyright protections.

In order to avoid their actions constituting infringement, the meme creator must rely on an affirmative defense. The two most applicable affirmative defenses to internet memes are

  • an existence of an expressed license or
  • that the use of the copyrighted material constitutes fair use. Asserting the fair use affirmative defense is the more fitting for the interests of internet memes.

In analyzing the fair use defense (USA), courts balance the four factors:

  • purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  •  the nature of the copyrighted work;
  •  the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • the effect of the use upon the potential market for or value of the copyrighted work. Parody and satire (memes fall under this) and education as fair dealing exceptions in addition to research, private study, criticism, review and news reporting all fall under fair use. [2]

Keep in mind, that potential analysis of copyright infringement by internet memes may be different under different international law.

The assessment of the requirements outlined by CJEU case law must be assessed for each specific meme, on a case-by-case basis. In those Member States, which have implemented it, the parody defense will apply when both the expression of humor or mockery and the noticeable difference, together with further incidental requirements are met.[3]  The legal issue of memes in EU is also addressed in Article 17 of Directive on Copyright in the Digital Single Market here.

In practice, IT IS IMPOSIBLE TO FULLY ENFORCE COPYRIGHT PROTECTION. There are just too many memes created daily, they are created anonymously and without known source. Furthermore, brands may not press charges, because it promotes their brand and integrates it within popular culture (Should you or should you not take legal action?). However, this might not always be the case for influencers and meme-generating platforms. If you want to be completely safe, make sure you create memes fully on your own/ transform the original work to a significant degree, or simply don’t post and use memes without knowing (or naming) the source.

[1] https://www.forbes.com/sites/forbesagencycouncil/2018/07/19/more-than-a-trend-meme-marketing-is-here-to-stay/

[2] https://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1076&context=pipself

[3] https://dimensions.altmetric.com/details/44716120