By Emily Marczak
Christine-Marie Lauture, Esq. supervised the writing of this blog
The United States presidential inauguration of 2021 was a momentous occasion that marked the transition of power from Donald Trump to Joe Biden. However, the main event was overshadowed by another political figure who was sitting cross-legged on a metal chair, wearing handmade brown knit mittens and captured the current zeitgeist by wearing a blue surgical mask. It was none other than Bernie Sanders who captured the attention of the younger public and overnight, became a viral meme sensation. Thousands of edits involving Bernie spawned all over the internet, from Bernie sitting on the moon, to Bernie sitting next to Forrest Gump on a bench, to Bernie sitting on the Iron Throne from Game of Thrones, Bernie appeared everywhere. The photographer who captured the image was Brendan Smialowski. In response to the boom that his photo caused, Smialowski stated, "I don't think anybody is crazy about their work turning into a meme, but it's nice to see people being creative with something." (https://www.cnbc.com/2021/01/23/bernie-sanders-inauguration-meme-heres-the-story-behind-the-photo.html) Social media platforms have made it easy for memes to be shared and for more creative edits to be cultivated. However, for photographers such as Smialowski and others who have had their images turned into memes, is there legal recourse if they choose to pursue?
Memes Memes originated in 1976 when zoologist Richard Dawkins came up with the term in his book The Selfish Gene. He originally defined memes as having the ability to carry information, be replicable, be transmitted from one person to another, and be constantly evolving by mutation. (https://www.britannica.com/topic/meme)
Today memes are defined as an "image, video, piece of text, etc., that is typically humorous in nature, that is copied and spread rapidly by internet users, often with slight variations."
(https://www.lexico.com/en/definition/meme) Memes are a popular form of communication, as they can be used for a variety of intentions, including social commentary, comedy, and commercial usage. (For social commentary see the recent Gamestop memes or for general memes expressing thoughts about daily life, see the "This is Fine" meme.) For example, there is a Facebook group focused on memes and specifically catered to law students. The memes that are shared on this page allow students to commiserate with each other over the law school experience. (https://www.facebook.com/groups/lsm4et14s/)
Traditionally, memes take an image or video stills and reimagines the original work in a way that would not be easily anticipated. They take the image out of its original context by either adding captions or editing it in a particular way. While there are non-visual memes, the visual memes are the types that are central to this blog analysis. There are few legal precedents on which to rely to help determine when memes infringe on copyrights. (See https://qrius.com/sorry-thats-my-meme/; Stacey M. Lantagne, Famous on the Internet: The Spectrum of Internet Memes and the Legal Challenge of Evolving Methods of Communication, 52 U Rich L Rev 387, 394 )
Copyright Copyright issues are triggered by the existence of memes for a few reasons. First, visual memes often involve copyrighted works such as photographs and video stills. Second, as internet memes become viral, new variations of the meme are created and this may arguably infringe on the author's ability to create derivative works.
Copyright is a form of protection given to authors of "original works of authorship that are fixed in a tangible form of expression." (https://www.copyright.gov/circs/circ01.pdf) An original work of authorship is a work that is independently created by a human author and possesses at least some minimal degree of creativity. (Id.) A work is "fixed" when it is captured in a sufficiently permanent medium so that the work can be perceived, reproduced, or communicated for more than a short period of time. (Id.)
Copyright grants authors an economic incentive to create more works. (https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1704&context=faculty_scholarship) Memes are unique in how they demonstrate the weakness of the justifications for copyright. Memes typically do not impair an author's earning potential or ability to produce additional works. A creator of a meme is not typically expecting to be paid for creating one. As for the aforementioned author's rights in a derivative work, memes are an outlier as well, as they are created and may be known only due to their popularity -- they are not reliant on the popularity of the source material. Therefore, meme creators have different incentives for creating memes than authors who create derivative works, and their interests typically do not overlap. As a result, memes are likely to be considered as transformative (see below discussion).
Fair Use Copyright allows for several defenses to infringement,including the Fair Use doctrine. Section 107 of the Copyright Act provides four factors that the court balances in evaluating this defense in a copyright infringement case. The factors include:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use is upon the potential market for or value of the copyrighted work.
When considering the totality of the factors, although always determined on a case-by-case basis, memes are commonly believed to be protected as fair use. (See, e.g., Anupam Chander & Madhavi Sunder, Dancing on the Grave of Copyright?, Duke L & Tech Rev, August 2019, at 143, 154; Ronak Patel, First World Problems: A Fair Use Analysis of Internet Memes, 20 UCLA Ent. L. Rev. 235, 256 (2013); Stacey M. Lantagne, Famous on the Internet: The Spectrum of Internet Memes and the Legal Challenge of Evolving Methods of Communication, 52 U Rich L Rev 387, 394 ; https://www.publicknowledge.org/blog/copyright-for-meme-makers/) While memes can involve commercial use and typically incorporate a substantial portion of the original work, memes also typically undergo a significant level of transformation and often tend to improve the market for the original work. (See, e.g., Lee J. Matalon, Modern Problems Require Modern Solutions: Internet Memes and Copyright, 98 Tex L Rev 405, 427 ; Anupam Chander & Madhavi Sunder, Dancing on the Grave of Copyright?, Duke L & Tech Rev, August 2019, at 143, 154; Lea Silverman, Don't Sue Meme, It's A Parody, BC Intell Prop & Tech F, February 7 2020, at 1, 5-6.) (See the discussion over the Downfall parody, which is further discussed later in this article: Aaron Schwabach, Reclaiming Copyright from the Outside in: What the Downfall Hitler Meme Means for Transformative Works, Fair Use, and Parody, 8 Buff Intell Prop LJ 1, 16  ("It is unlikely to cannibalize sales and rentals of the original; if anything, it may augment them by bringing attention to a movie many non-Germans might otherwise have overlooked...").
First Factor: Purpose and Character of the Use, Including Commercial Nature or Nonprofit Education Purposes One of the glaring problems that first arises with this factor is the "commercial nature" aspect. Memes are a form of communication, and with the rapid sharing over on the internet, there is an issue of commercial vs. non-commercial speech. If a meme is categorized as commercial speech, then there are two consequences. First, when a meme is classified as "commercial", then the Fair Use doctrine may be eliminated as a defense due to the first factor of Fair Use, "...whether the use is of a commercial nature." (See Elizabeth Rocha, Y U No Let Me Share Memes?! - How Meme Culture Needs A Definitive Test for Noncommercial Speech, 28 DePaul J Art, Tech & Intell Prop L 37, 41-42 ; Extent of Doctrine of "Fair Use" under federal Copyright Act A.L.R.3d 139 (Originally published in 1969) Second, when a business shares or otherwise uses a meme that is deemed commercial in nature, they the business may be found liable for infringement, even if the intention was for a non-commercial purpose.
While courts have initially found that non-profit educational purposes were the only uses permitted under the first prong of Fair Use, the Supreme Court in later cases determined otherwise due to the limit that would be imposed on commercial speech. (See 44 Liquormart, Inc. v. Rhode Island 517 U.S. 484, 501 (1996)) The formative case, Campbell v. Acuff-Rose Music Inc., stated that commercial use is not a dispositive factor in determining fair use, but should only be a consideration under the first factor. (Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584 (1994)) Another important point in Campbell was the discussion of the transformative nature of a work. The Court stated that transformative works "lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright." The Court in that case found that the transformative nature of a work was the most important consideration in finding a Fair Use defense. While not all memes may be considered transformative, arguably the Bernie meme has reached this level of transformation, as there are many iterations of the meme.
Second Factor: The Nature of the Copyrighted Work In the second factor of a fair use defense, courts tend to favor factual works over highly creative ones. The nature of the copyrighted work in memes is typically fictitious rather than factual. In Harper & Row, Publishers, Inc. v. Nation Enterprises, the court stated that the law typically acknowledges a "greater need to disseminate factual works rather than fiction or fantasy. (Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539, 563 (1985)) Typically this factor will be less important in a fair use analysis when it comes to memes, especially when the memes are intended as parodies -- as the Bernie meme would likely be considered -- because parodies invariably copy publicly known expressive works. (See https://qrius.com/sorry-thats-my-meme/; Stacey M. Lantagne, Famous on the Internet: The Spectrum of Internet Memes and the Legal Challenge of Evolving Methods of Communication, 52 U Rich L Rev 387, 394 ; https://www.copyright.gov/circs/circ01.pdf)
Third Factor: The amount and substantiality of the portion used in relation to the copyrighted work as a whole The third factor would likely be against the sharer of the meme as memes are typically shared without any additional changes. However, with the Bernie meme, there have been many variations that have made it maintain its popularity. (https://www.nytimes.com/2021/01/21/us/politics/bernie-sanders-meme.html) Depending on the meme being addressed in the suit, this factor would really need to be addressed on a case-by-case basis. (Stacey M. Lantagne, Famous on the Internet: The Spectrum of Internet Memes and the Legal Challenge of Evolving Methods of Communication, 52 U Rich L Rev 387, 413 ) Of course, when there is only a minimal portion of the original content used -- also known as a de minimis use -- courts may excuse the copying under fair use. (Caroline Hewitt Fischer, It's De Minimis, but Wait! It's Also Fair Use: Faulkner v. Sony Pictures and Why Courts Should Focus on Developing the De Minimis Doctrine to Streamline Copyright Infringement Analysis, 16 Tul J Tech & Intell Prop 301, 304  (De minimis can also be relevant to the third factor of the fair use affirmative defense, which considers "the amount and substantiality of the portion used [in the infringing work] in relation to the copyrighted work as a whole."))
Fourth Factor: Market Effect The fourth factor is generally less important once a work is determined to be transformative. The Second Circuit mentioned in Bill Graham Archives v. Dorling Kindersley Ltd. that when a use is transformative from their original purpose, then a copyright holder cannot prevent others from entering fair use markets merely "by developing or licensing a market for parody, news reporting, educational or other transformative uses of its own creative work.' (Bill Graham Archives v Dorling Kindersley Ltd., 448 F3d 605, 615 [2d Cir 2006]) However, not all memes may be considered transformative.
Typically, a meme that is just shared on the internet will not have a negative market effect on the copyright holder. In fact, some memes may help a work gain more exposure to the public, which will have a positive effect on the copyright holder. (See the discussion over the Downfall parody, which is further discussed later in this article: Aaron Schwabach, Reclaiming Copyright from the Outside in: What the Downfall Hitler Meme Means for Transformative Works, Fair Use, and Parody, 8 Buff Intell Prop LJ 1, 16  ("It is unlikely to cannibalize sales and rentals of the original; if anything, it may augment them by bringing attention to a movie many non-Germans might otherwise have overlooked..."))
However, if there is a criticism within the meme then some courts may find this factor in favor of the copyright holder. The copyright holder would then need to show that its market/brand was harmed. Overall, whether a meme will be found to be excused by fair use, would need to be determined on a case-by-case basis. As for the Bernie meme, courts would likely find for fair use, given the transformative nature of the work - but this is not definitive. There are other arguments to consider.
Implicit Licensing Alternatively, there may be a claim that the sharing of memes is implicitly licensed. If the copyright holder licenses the work to an individual, then there is no copyright infringement as long as the licensee complies with the license terms. (https://theweek.com/articles/860630/have-brands-killed-meme-culture (See Patel's argument)) Social media users typically don't seek legal permission when sharing an image or a phrase because the permission is implied through the way the work is created and disseminated. (Id.) When it comes to meme sharing on social media, an argument could be made that there is an implied license in every meme. (Id.) As mentioned in the introduction, social media is used for the purpose of sharing things with others, and the aim is usually for things to subsequently be reshared. When it comes to a non-commercial use, an implied license could exist to use the memes in the creation of other memes.
Satire and Parody Some memes may gain protection against copyright infringement claims through their parodic nature. However, not all memes are parodies. This emphasis is important because only parodies can use fair use as a defense whereas satire is less likely to be afforded protection. (Eric D. Gorman, Who Gets the Last Laugh? Satire, Doctrine of Fair Use, and Copywrong Infringement, 29 Temp J Sci Tech & Envtl L 205, 215-16 ) A parody is a comedic commentary about a work, which requires an imitation of a work. (Annemarie Bridy, Sheep in Goats' Clothing: Satire and Fair Use After Campbell v. Acuff-Rose Music, Inc., 51 J Copyright Soc'y USA 257, 257-58 ) Satire uses a creative work in order to make a comment, but the commentary and criticism is about the world, instead of the specific creative work itself. (Id.) Satire, unlike a parody, does not need the copyrighted work in order to make a criticism, and that is why satire falls out of the scope of the fair use defense. (Id.)
When it comes to the first prong in the fair use examination, the parody must be sufficiently transformative. The most notable case is Leibovitz v. Paramount Pictures Corp., where the court found that the advertisement was a fair use of the original work because of its parodic nature. (Leibovitz v Paramount Pictures Corp., 137 F3d 109 [2d Cir 1998]) The original work was shot for a magazine and it featured a nude photo of then-pregnant Demi Moore. (Id.) The Nielsen ad was an advertisement for a movie, and it featured the body of a pregnant woman, except that it was edited with the head of Leslie Nielsen, a man, smirking - instead of the serious expression of Demi Moore. Id. The Nielsen ad was a parody because it set out to mock the original Moore photo and it relied on a contrast to the Moore photo in order to obtain the intended comedic effect. (Id. at 14)
There have been several memes created that were intended as parodies. One of the most notable parodic memes involved the movie "Downfall", which is a film detailing the final years of Hitler's reign in Germany. (Aaron Schwabach, Reclaiming Copyright from the Outside in: What the Downfall Hitler Meme Means for Transformative Works, Fair Use, and Parody, 8 Buff Intell Prop LJ 1 ) Parodies spawned from a particular scene in this movie in which Hitler is given bad news by an officer concerning the German defenses, leading to Hitler going on an angry rant.
(https://knowyourmeme.com/memes/hitlers-downfall-parodies) Users took this clip from a film whose source material is grim and tragic and churned out parody after parody. (Id.) As the film is in German, users were able to add their own captions that allowed Hitler to rant on topics ranging from a late pizza delivery to the creation of the iPad. (Id.) The videos had started to disappear because Constantin Films, which owned the rights to "Downfall", used YouTube's content ID system to find and file a copyright claim with YouTube for every video that used any part of "Downfall". However, the channel that hosts the video may rebut this copyright claim and there are no legal consequences for either party pursuant to the Digital Millennium Copyright Act. (Aaron Schwabach, Reclaiming Copyright from the Outside in: What the Downfall Hitler Meme Means for Transformative Works, Fair Use, and Parody, 8 Buff Intell Prop LJ 1 ) Users responded by creating more Hitler rant parodies in which he ranted about his inability to make more Hitler rant parodies. (Id.) One of the points that Constantin Films brought up was that the creators of the parodies could potentially get revenue from advertising placed on the videos, which would turn the parody into a commercial use. (https://www.smh.com.au/technology/downfall-of-hitlers-youtube-parody-20100421-stw2.html) Constantin Films never went to court over these memes.
This particular instance also demonstrates the difficulty copyright owners face with enforcement. This parodic meme was so successful that it spawned parodies in other countries. (https://knowyourmeme.com/memes/hitlers-downfall-parodies) The issue is that copyright law is national in scope, and every country has its own respective copyright laws.
(https://www.copyright.gov/circs/circ01.pdf) If an individual acquires a copyright registration in the U.S., it does not mean that there is automatic protection in every other country, which can make it difficult for copyright owners to fully get eradicate memes. (Id.)
As for the Bernie meme, it could qualify as a fair use through parody, due to the intention of the meme editors to make comedic commentary through blending Bernie's still image within various locations, artwork, and stills of movies. The editors' intentions are not for the purpose of criticism, so it would likely fall under the category of a parody and not satire.
Right of Publicity Additionally, the right of publicity should be considered when thinking of memes. The right of publicity prevents the unauthorized commercial use of an individual's name, likeness, or any other recognizable aspects of one's persona. (Eric E. Johnson, Disentangling the Right of Publicity, 111 Nw UL Rev 891, 893 ) It gives an individual the exclusive right to license the use of that identity for commercial promotion. (Id.) While there is no federal right of publicity law, 24 states have some form of a right of publicity statute.
(https://rightofpublicity.com/statutes#:~:text=Currently%2C%2024%20states%20have%20some,of%20the%20Marilyn%20Monroe%20cases) An important aspect of right of publicity is that it concerns a commercial use. (Eric E. Johnson, Disentangling the Right of Publicity, 111 Nw UL Rev 891 ) Memes can typically be easily distinguished into commercial and non-commercial memes.
Recently, in 2019, Fiji Water was sued for posting a meme that featured a "Fiji Water Girl". (https://www.bbc.com/news/world-us-canada-47182951) The woman in the meme was seen in various photos of red-carpet events, holding a tray of Fiji water. (Id.) These photos went viral, as memes of her holding her tray of Fiji water started appearing all over social media. Id. In the complaint filed by the woman, Kelly Steinbach, she stated that Fiji Water tried to capitalize on her popularity through creating a worldwide cardboard cutout marketing campaign. (Id.) Life-size cutouts of Steinbach and her water appeared in various stores. (Id.) Fiji Water had initially put up some memes on its social media account relating to Steinbach but later took them down. (https://www.thefashionlaw.com/the-fiji-water-girl-is-suing-the-company-for-using-her-likeness-without-her-consent-and-without-paying-her/#:~:text=Kelleth%20Cuthbert%2C%20a%20model%2Dturned,advertising%20campaign%20without%20her%20authorization) The complaint included a claim of a violation of Steinbach's right of publicity under California's Civil Code. (Id.) Ultimately this matter settled, so no precedent was established.
Another meme that has been circling the internet for quite some time is the "Crying Michael Jordan" meme. (https://www.npr.org/sections/thetwo-way/2016/03/31/472330783/the-evolution-of-the-michael-jordan-crying-face-meme) Jordan has mentioned that he has no issue with the meme as long as no individual is using it to promote commercial interests. (https://www.npr.org/sections/thetwo-way/2016/03/31/472330783/the-evolution-of-the-michael-jordan-crying-face-meme) In 2015, Jordan was awarded $8.9 million in damages in his case against a grocery store that had used his image once in an advertisement promoting a coupon for steak. (https://www.snopes.com/fact-check/michael-jordan-sue-grocery-store-10-million/) This example demonstrates as a cautionary tale when it comes to commercial uses and publicity rights.
Politicians and celebrities are typically treated differently when it comes to right of publicity suits, despite both of them falling under the umbrella of a "public figure".
(https://www.motherjones.com/politics/2017/02/trump-name-publicity-rights/); (https://www.law.cornell.edu/wex/public_figure) Celebrities are given more leeway when it comes to protecting their personal brands, whereas Americans "tend to treat politicians' images as public property." (Id.) Politicians rarely claim the right of publicity, mostly because of the negative connotation or chilling effect it would bring. (https://repository.uchastings.edu/cgi/viewcontent.cgi?article=1723&context=hastings_comm_ent_law_journal) It would "make it look like they're trying to capitalize on their office." (https://www.motherjones.com/politics/2017/02/trump-name-publicity-rights/) The First Amendment tends to protect most unapproved portrayals of politicians, especially when they involve opinion, parody, commentary, and other forms of speech. Id. However commercial uses of politicians' names and likenesses are not protected. (Id.) As the Bernie meme would likely fall under a non-commercial use for the editors on the internet, it would be safe under a right of publicity (along with the trend of politicians typically not invoking this right). However, what if companies were to use it?
Today's Usage Recently, Ikea used the Bernie meme in an advertisement to sell a chair with the simple caption "Get the look." (https://www.thedrum.com/news/2021/01/25/ikea-muscles-the-bernie-sanders-meme-with-get-the-look-ad) Ikea would have a more difficult time claiming fair use, as its use is for a commercial purpose. Additionally, this commercial purpose would leave Ikea more vulnerable to a claim of a violation of right of publicity from Bernie himself. (https://repository.uchastings.edu/cgi/viewcontent.cgi?article=1723&context=hastings_comm_ent_law_journal) Alternatively, the brand can try to say that its ad was in jest (or rather, a parody) and that it was trying to keep up with the times, as this is not its first attempt of referencing U.S. politicians in its ads. In 2019, when Barack Obama traveled to Singapore for a live discussion, the SGD$345 (Singaporean Dollars) tickets to attend the event sold out quickly. As a response to those who were unlucky in getting tickets, Ikea created a post on Facebook with a picture of an armchair that costed SGD$299 and the caption read: "Even if you can't make it to see the Obamas, you can still chill out for under SGD$345." (https://www.marketing-interactive.com/ikea-offers-an-alternative-for-those-who-missed-out-on-the-obamas) In other similar cases, memes have been used in marketing campaigns for companies. Virgin Media used a meme known as "Success Kid" in its billboard advertisement.
(http://viralmedia.pbworks.com/w/page/50219891/Success%20Kid) However, it purchased the rights to use the original photo. Success Kid's parents license the image to advertisers and actively enforce against those who attempt to advertise without a proper permission and licensing in place. In another case, Warner Bros. was found to have infringed copyrighted works when it used 2 memes (the "Nyan cat meme" and the Keyboard Cat video) in one of its games without permission. (https://nymag.com/intelligencer/2013/09/keyboard-cat-nyan-cat-win-warner-bros-lawsuit.html)
Conclusion Both meme creators and companies who use memes in their advertisements have to remain cautious, as the legal landscape for memes is still somewhat ambiguous. Fair use may be a potential defense for copyright infringement that involves the creation of memes, but it is not a default protective measure, as memes would have to undergo a complete fair use analysis including passing the transformative use test within the analysis prongs. Instead, the best practices when it comes to considering creating a meme from a viral photo is to license the photo from the owner if possible. Although Smialowski allowed the Internet to unleash its creativity and spread the Bernie meme across social media platforms, future meme creators may not be as fortunate when copying from a copyright owner who may not be as generous.