Copyright Enforcement Across the Meme Spectrum

Copyright Enforcement Across the Meme Spectrum
Joshua Gablin | April 6th, 2022

Introduction

Memes have become so widespread in communication that they are now part of the vocabulary of the internet.[1] They offer a simple way to communicate multiple permutations of complex ideas readily and succinctly, but because memes are made of copyrightable material they are eligible for copyright protection.[2] However, this is complicated by the constant evolution of memes, which gives copyright to subsequent creators of modified memes, and the doctrine of fair use, which provides a defense to copyright infringement when successfully proven.[3] Finally, the barriers to litigation may make an infringement case impractical for many copyright owners, but new alternatives could offer more options to protect works.[4]

I. Copyright in Memes

Most memes are composed of copyrightable source material: photos, videos, text, and sound recordings.[5] Each of these elements is protectable individually and any collection of these elements is also protectable.[6] Adding to the complexity, the author of a collection of works, ie an arrangement of images and text, owns the copyright to that collection even if they do not own the copyright or have the authorization to use the individual elements.[7]

Derivative Works

A defining characteristic is that multiple changes occur within different iterations. In copyright terminology, each modification of a meme is the creation of a derivative work.[8][9] The author of the original work has the exclusive rights to authorize the production of works derivative to the original.[10] However, once an unauthorized derivative work has been created this does not entitle the original author to the copyright of the subsequent work.[11] Rather, the author of the derivative work owns the copyright of whatever contribution they made to the work.[12] In the case of memes, this can range widely: from minor changes in overlayed text to multiple distortions and overlayed images.[13] Repeated modification can add complexity to copyright proceedings, resulting in derivative works of derivative works with confusing ownership claims.[14]

Fair Use

The fact that most memes are created from copyrightable material does not always mean that any unauthorized use is infringement. In the United States, an alleged copyright infringer can assert the Fair Use defense.[15] The test for this defense balances four factors: the purpose and character of the use, the nature of the copyrighted work; the amount of work used; and the effect of the use upon the potential market of the copyrighted work.[16] This allows for protected uses of source material for purposes such as social commentary, satire, and parody. In other countries, however, this type of defense may not available.[17] This may lead to more enforcement of copyright infringement of memes in certain countries.[18]

II. Copyright Assertion Across the Meme Spectrum

Memes and other viral media exist on a spectrum, from those which appropriate unaltered source material to those which have been altered beyond the recognition of the source material. We can distinguish between these as “static” use memes on one end (where the copyrighted image is unmodified) and “deep-fried” memes on the other end.[19] Static memes may be easier cases for the owner to enforce the copyright, while deep-fried memes seem to be easier to protect with a fair use defense.[20]

September 11^th Flag Raising

One of the earliest copyright cases in which a fair use defense was asserted against a viral image involved the static use of a photo of the response to the September 11^th terrorist attacks.[21] The owner of a photograph of firemen raising the American flag at the World Trade Center site sued Fox News for posting the image on the Facebook page used to promote a Fox News host, Jeanine Pirro.[22] The copyrighted photo was combined with another famous photograph of the Iwo Jima flag-raising from WWII, then shared by Fox and multiple other outlets to comment on the comparison between the two images.[23] Fox’s argument that the viral nature of social media and commentary rose to transformative use was denied by the court, which held that the use was non-transformative and infringing despite its memetic status.[24][25]

The Dress

Another static example that achieved viral status is a chromatically confusing photo of a dress that began circulating in 2015.[26] An article on Buzzfeed featuring the photo received over 39 million hits, but the original photographers were originally not accredited in the majority of the posts.[27] Once the copyright owners did obtain legal representation, they were unable to recover enough in damages to cover their legal costs, due in part to the widespread nature of distribution.[28]

Socially Awkward Penguin

A common type of meme derived from the same original source material is called the “image macro.”[29] This usually involves a static background image with lines of text on the top and bottom of the image.[30] One popular example of an image macro is known as the Socially Awkward Penguin, which features a photo of a penguin walking in front of a blue background.[31] The text above and below the penguin describes an uncomfortable social situation.[32] This photo received widespread notoriety throughout the internet as an image macro, so a German blog, Geeksisters, was understandably surprised when it received notice from Getty Images that the penguin image was their intellectual property.[33] Getty claimed the image needed to be licensed and that the blog already owed back licensing fees of €785.[34] The letter also insisted that Geeksisters not share the terms within.[35]

Ultimately, Geeksisters paid the back licensing fees, but refused not to disclose the contents of the demand letter.[36] They published the enforcement letter, created an alternative awkward penguin meme template, and granted free rights to public use of their template.[37] Publishing the letter provided a widely shared story for many blogs and sparked incredulity on the part of many internet meme creators, many of whom had used the same image.[38] While an infringement action over this image has never gone to trial, no other party revealed they were notified of a need to license the image, despite the continued widespread use of the image.[39] This suggests that copyright owners might not file infringement actions when the publicized results reflect negatively on them, even if they stand to make money in damages.

Pepe the Frog

A final example that has spawned many derivative works is a cartoon character named Pepe the Frog created by Matt Furie in 2005.[40] This meme spread throughout the internet over the next decade without action by Furie but was appropriated by the alt-right movement, Alex Jones, and Donald Trump in 2015.[41] Infowars, LLC profited over $30,000 from a “Make America Great Again” poster featuring Pepe the Frog.[42] In response, Furie brought an infringement suit against them in federal court.[43] The court held that the memetic spread of the character did not itself provide a defense to unauthorized uses, nor did it meet the factors of fair use.[44] Furie received $15,000 in damages from the suit.[45]

The motive behind the Pepe copyright proceedings seems largely moral. When Pepe was appropriated by the alt-right and white supremacists, it was listed as a hate symbol by the Anti-Defamation League.[46] Furie did not receive as much in damages as Infowars made in profits, but was able to stop the production and sale of the infringing poster.[47] In 2016, Furie teamed up with the ADL to reclaim the character’s image.[48] So when the Pepe character was used in Hong Kong protests in 2019-20, he did not seek compensation.[49] Pepe merchandise is still available, for which Furie does not receive any compensation.[50] Artists in the United States do not have a moral right to prevent their work from being used in ways they do not approve of (with limited exceptions), but this case suggests that artists may exercise their rights when the infringing use is morally repugnant while allowing free use of their work in other memes.

Deep-Fried Memes

On the end of the meme spectrum are deep-fried memes: highly modified or distorted, rarely widespread, and often esoteric in message and meaning.[51] These include “rare Pepes,” which have not achieved the notoriety of more popular mutations.[52] No infringement claims have yet been brought against deep-fried memes, which suggests that they are least likely to result in action due either to lack of spread or greater potential to claim fair use. Perhaps copyright in such memes will be enforced more frequently as the copyright infrastructure evolves.

III. Copyright Enforcement in Memes

The Socially Awkward Penguin letter shows that international enforcement may be easier in countries that don’t have exceptions like fair use. So, although every Copyright owner in the United States has a statutory cause of action for infringement, pursuing this action in federal court is not always a viable option.[53] The exorbitant time and cost of a lengthy copyright suit are barriers to litigation that make federal copyright claims economically unfeasible for individual creators.[54] Additionally, many infringing memes are shared freely by individuals, whom the copyright holder may have difficulty even identifying.[55]

But American copyright owners gained a new form of enforcement with the passage of the Copyright Alternative in Small-Claims Enforcement Act of 2019 (CASE Act).[56] This establishes the Copyright Claims Board (CCB), a three-member tribunal of officers appointed by the Librarian of Congress.[57] The board will make non-precedential decisions, available to the public, for which parties will be able to seek review in Copyright Office and federal court.[58] However, CCB litigation limits statutory damages to $15,000 in statutory damages per work, capped at $30,000 per case.[59] Further, any defendant can opt out of CCB litigation, so this option may not prove more favorable to small copyright owners seeking to enforce.[60]

[1] Anupam Chander & Madhavi Sunder, Dancing on the Grave of Copyright?, Duke L. & Tech. Rev., 143, 152 (2019)

[2] 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, 400 (2018)

[3] Id.

[4] Ross Kowalski, & Steven Lauridsen, Memes are here to stay, and so is your risk of being sued for copyright infringement, 28 No. 07 Westlaw Journal Intellectual Property 03

[5] 17 U.S.C.A. § 102(a)

[6] 17 U.S.C.A. § 103

[7] Id.

[8] 17 U.S.C.A. § 101

[9] Lee J. Matalon, Modern Problems Require Modern Solutions: Internet Memes and Copyright, 98 Tex. L. Rev. 405, 416 (2019)

[10] 17 U.S.C.A. § 101

[11] 17 U.S.C.A. § 103(a)

[12] 17 U.S.C.A. § 103(b)

[13] Matalon, at 415.

[14] Id.

[15] Lantagne, at 395-6.

[16] 17 USC 107

[17] Maira Sutton, The Murky Waters of International Copyright Law, Electronic Frontier Foundation (Feb. 25, 2016), https://www.eff.org/deeplinks/2016/02/murky-waters-international‑copyright‑law#:~:text=As%20fair%20use%20proved%20to,exceptions%20and%20limitations%20to%20copyright.

[18] Id.

[19] Lantagne, at 416.

[20]Id. at 390-2.

[21] North Jersey Media Grp. Inc. v. Fox News Network, LLC, 312 F.R.D. 111, 113 (S.D.N.Y. 2015)

[22] Id.

[23] Id.

[24] Supra, Kowalski

[25] North Jersey Media Grp. Inc., at 113.

[26] Elena Cresci & Martin Belam, #TheDress one year on – eight things we learned from the viral phenomenon, The Guardian (Feb. 26, 2016)

[27] Id.

[28] Id.

[29] Matalon, at 414.

[30] Id.

[31] Rich Haridy, The Remix Wars: Copyright and the Socially Awkward Penguin, NEW ATLAS (Oct. 17, 2016), http://newatlas.com/internet-copyright-history-remix/45536/.

[32] Id.

[33] Getty Images Demands License Payment for Awkward Penguin!, getDigital (Sept. 2, 2015), https://www.getdigital.de/blog/getty-images-wants-license-fees-for-the-awkward-penguin-meme/

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] Rich Haridy, The Remix Wars: Copyright and the Socially Awkward Penguin, NEW ATLAS (Oct. 17, 2016), http://newatlas.com/internet-copyright-history-remix/45536/.

[39] Id.

[40] Supra, Kowalski

[41] Id.

[42] Id.

[43]  Furie v. Infowars, LLC, 401 F. Supp. 3d 952, 971 (C.D. Cal. 2019)

[44] Id. at 978.

[45] Supra, Kowalski

[46] Pepe the Frog, Anti-Defamation League, https://www.adl.org/education/references/hate-symbols/pepe-the-frog

[47] Supra, Kowalski

[48] Supra, Pepe the Frog

[49] Daniel Victor, Hong Kong Protesters Love Pepe the Frog. No, They’re Not Alt-Right, N.Y. Times (Aug. 19 2019), https://www.nytimes.com/2019/08/19/world/asia/hong-kong-protest-pepe-frog.html

[50] Pepe Frog T-Shirts, RedBubble, https://www.redbubble.com/shop/pepe+frog+t-shirts

[51] Lantagne, at 400.

[52] Supra, Pepe the Frog

[53] 17 U.S.C.A. § 501

[54] Supra, Kowalski

[55] Id.

[56] Copyright Small Claims and the Copyright Claims Board, U.S. Copyright Office, https://www.copyright.gov/about/small-claims/

[57] Id.

[58] Id.

[59] Id.

[60] Supra, Kowalski