Memes are the internet’s universal language. Especially for the fitness industry. If there’s one thing they do really well, it’s creating and sharing memes. Many will use images they find on google. Those images usually have a copyright owner. So, are they legal?
An internet meme is a derivative work. This means that usually, the copyright owner is the only one who can create a derivative work, including a meme.
Derivative work is something based on or derived from a work that already exists. Examples include translations, movie versions of books, etc.
To further complicate matters, the rights of the copyright owner (usually the person who owns the image) aren’t absolute.
Phew, what does that mean?
If the person who makes the “derivative work” makes “fair use” of the copyrighted image, this is a defense to a claim of Copyright Infringement.
Here’s a quick review:
Fair use is measured by four areas or prongs (§107 of the Copyright Act.)
- the use’s purpose and character,
- the nature of the copyrighted work,
- the amount used,
- its effect upon the potential market.
Number one is usually satisfied if the image is used for purposes of commentary, criticism, reporting, or teaching. The Supreme Court has held that a parody, and/or a satire may qualify as a fair use image under the Copyright Act since it’s a commentary on original work.
Aren’t all memes inherently parody or satire?
Being liable for the use of an identifiable image or copyrighted character seems to be governed by a few factors:
- Whether the person creating or sharing the meme make revenue (even indirect revenue) from sharing the meme,
- The extent to which the copyright holder’s work has been used or copied,
- Whether the nature of TV, athletes, and media characters makes them famous and susceptible to other uses,
- The potential of the meme to harm the brand of the copyright holder.
For example, if they are so outlandish and crude, and clearly not attributable to the copyright holder, it would be difficult for an owner to prove copyright infringement. However, based on the past, it’s certainly not impossible! (see Walt Disney Productions v. Air Pirates, 345 F. Supp. 108 (N.D. Cal. 1972) for more).
There are examples of Getty Images sending letters demanding license fees to those who have used memes created by others from content owned by Getty.
It’s enough to give anyone pause!
The best course of action is only to use images for which you either have a license or own the copyright. Of course, this isn’t a very popular advice.
Remember, while you may not face any challenge from posting a meme on your personal blog (if non-monetized) or your personal Facebook page, it’s not the same as posting or sharing on your business accounts.
They May Not Care
“Even if it might actually violate copyright legally speaking, content owners may not press the issue because it helps ingratiate their brand into the culture to have their work copied all around the Internet…” – Arther Law’s Industry Insider
Arther Law’s Industry Insider shares that while sites like RealityGif’s routinely share the copyrighted property of major television and broadcasting companies, they have never received a take-down request, or a request to pay for the use of copyrighted material. They speculate the reason is because sites like this serve a promotional purpose.
What happens if you get a take-down letter from a copyright owner or licensing agency?
As described in Art Law Journal, there’s no need to cave fast under pressure when faced with a “Getty letter”, or any take-down letter. Getty’s business is copyrighted images. They have a vested interest in earning money through protecting its works. However, things may not always be as they seem.
The company was sued for its deceptive practices. Before you pay up, make sure you need to.
Before you talk with your attorney, confirm that the image in question is the same or similar to the image in the meme. Second, make your own judgment about whether the use of the image constitutes fair use.
Are you making money out of it? Even indirectly? Does it constitute commentary and thus equates to parody or satire? How much of the image did you use? Is the image of a character or of a medium that is susceptible to other uses?
Copyright holders or licensing agencies are less likely to proceed with legal action if they think it’s more trouble than it’s worth financially. However, you will still need to prove the “fair use” during legal processing.
It might be helpful to do a “fair market value analysis”. This determines whether the figure the copyright holder, or licensing agency claims the image is worth is the actual fair market cost of the image. To calculate the fair market value, use the average price of comparable images found on stock photo sites. For example, if the image in question is from the Olympics, find eight or so similar images and use the average price as fair market value.
What if it is your image that has been turned into a meme?
Here’s where things change, a bit.
First, consider whether you might be able to turn the meme into a form of advertising for your own fitness-related business. Is it satire or parody? You will also want to decide if you think those that created or are sharing the meme are making money, even indirectly, from your work.
Is it worth the time and effort to go after those that have used your copyrighted image? The same formula applies here as to when you receive a take-down letter.
In any case, you will want to talk to an Attorney about the contents of any take-down or pay up letter you might consider sending to both the creator and anyone who publishes a meme that includes your copyrighted image.