Internet Memes and Copyright
The Web is awash with images subject to copyright. And just because an image is online doesn’t mean that the creator or copyright holder of an image has no colorable claim against infringers. As the burgeoning legal battle between The Oatmeal creator Matthew Inman and FunnyJunk.com’s attorney Charles Carreon shows us, the mere accusation of copyright infringement comes with enough possible legal trouble that it’s reasonable to wonder what exactly the law says about using and reposting materials that even might be subject to copyright. And this of course makes you think about some of the most frequent and easily used images potentially subject to copyright on the Internet: memes.
Some legal scholars have wondered about copyright and memes as anthropologists and linguists use that word (to mean a unit of cultural expression), but hardly anyone is discussing memes in their more everyday sense. That’s right: the images that get reblogged incessantly on Tumblr, that Redditors spend hours perusing and creating, and that services like MemeGenerator allow netizens to mold to their particular desires at any moment. When these images use or are based off of copyright protected images, characters, or snippets from TV shows, what legal liabilities do their posters incur? And anyway, what could (or should) a company do about it?
Before talking about copyright law, it’s important to establish that a copyright holder’s legal interest in his intellectual property is not absolute. The doctrine of fair use dictates certain times when someone who holds a valid copyright cannot bring an action against someone for reproducing the copyrighted material. 17 U.S.C. § 107 is the federal law that governs this doctrine, and it gives the right to fair use in certain contexts (including criticism, commentary, news reporting, teaching, scholarship, or research). It also lays out specific ways that courts should determine whether something is or is not fair use by weighing:
- the purpose and character of the use (e.g., was it for profit?);
- the nature of the copyrighted work;
- the amount and substantiality of the portion of the work used in relationship to the whole work; and
- the effect of the use upon the potential market for or value of the copyrighted work.
Fair use is grounded in the First Amendment. After all, the freedom of speech or press wouldn’t mean much if businesses, or even private individuals, could claim that no “work” they produced could be mentioned in public without their consent or without their being paid a licensing fee. Fair use seems like it allows for broad parody and artistic license as “commentary” or “criticism” of the work. But does fair use cover memes?
Take for example the case of Disney, whose company has quite a reputation for tracking down illegal uses of its products and intellectual property on the Internet. When someone creates a Dolan meme, is there liability which attaches? The Dolan meme is a bawdy, sometimes incredibly inappropriate use of characters intended to be derivative of famous characters created primarily by Disney but also by Warner Brothers. The typical format is a comic with four panels in which Dolan, who is clearly derived from Disney’s Donald Duck, interacts in shocking ways with characters like Gooby (Disney’s Goofy) and Bogs (Warner Brothers’ Bugs Bunny). Derivative works are specifically prohibited by federal copyright law. See 17 U.S.C. § 103. So is Dolan protected by fair use?
What’s interesting about the Dolan meme is that it is essentially a digital version of something that Disney actually litigated in 1972. In the case of Walt Disney Productions v. Air Pirates, 345 F. Supp. 108 (N.D. Cal. 1972), Disney sued a set of comic book artists in federal court to ask the court to forbid them from publishing bawdy comics which employed the likenesses of several Disney characters in not-so-Disney-friendly situations. The court agreed with Disney that its characters were so distinctive and so much work had been done around their branding, that they were copyrighted works for which a lawsuit was an appropriate remedy. Though this case was litigated throughout the decade, the 9th Circuit Court of Appeals agreed that this use of Disney’s characters was no mere parody covered by fair use: the Air Pirates weren’t parodying the characters themselves, so why did they need to copy them so directly? Since copying more of the work than is necessary to parody it makes it a derivative work forbidden by federal copyright law, the artists were ordered to pay money damages and were ordered not to continue to publish comics using Disney’s characters. See Walt Disney Productions v. Air Pirates, 581 F.2d 751 (9th Cir. 1978).
One wonders if Dolan is not the same as the comics produced by the defendants in Air Pirates. The answer is inconclusive at best. The courts have eased up on parodies since then. See, e.g., Hustler Magazine, Inc. v. Moral Majority, Inc., 606 F. Supp. 1526 (1985). And the Dolan comic really isn’t a wholesale copy like the defendants in Air Pirates had done, where Disney’s characters were drawn almost identically to Disney’s own art and were integrated into fully developed stories. What is clear, though, is that Disney would have to argue that the statutory fair use exceptions were not met. This would be hard to do, considering that 1) most people who post or create Dolan memes probably don’t make even indirect revenues off of them, 2) so little of Disney’s work is actually copied in the meme, 3) the nature of the Disney characters makes them famous and susceptible to other uses, and 4) the Dolan comics have little to no potential to harm Disney’s brand because they are so outlandish and crude and clearly not attributable to Disney. It would be a hard row to hoe for Disney. However, based on the past, it’s certainly not impossible!
But what if we’re not just talking about crude redrawings – what if we’re talking about actual screenshots? These memes – such as Futurama Fry, Condescending Wonka, and RealityTVGifs – make use of actual images grabbed from media content and overlay them with either original text and images or, in the case of RealityTVGifs, the transcript of the words originally synched to the clip. Are these fairly used, derivative works, or something companies should condone no matter what their potential copyright infringement? The example of RealityTVGifs shows that, in some cases, companies may be better off not asking questions.
RealityTVGifs is a site that features scores of animated images (“gifs”) with overlaid transcriptions that are pulled directly from media content owned by major media companies like NBCUniversal, Viacom, Fox, Discovery Networks, and AMC Networks. These gifs have legs: According to the site’s own statistics, it received nearly half a million views in May 2012. (This statistic in no way reflects the number of reblogs or unattributed posts made with these images on other sites.)
The Disclaimer of RealityTVGifs addresses the concern that content owners might view this unbridled copying as a violation of their copyrights. The Disclaimer tells readers how the images are produced (either from files downloaded from iTunes or which stream for free on the content owners’ sites) and casts the whole site as free promotion. It also assures content holders that any materials they want removed will be removed immediately. (However, it’s hard to imagine this removal would be very effective, considering that removing them from the site does little to remove them from wide circulation all over the Internet.) The Disclaimer also makes it clear that the operator of the site uses ad revenues to fund the site’s content (presumably, just enough revenue not to turn a profit).
So, is this copying free promotion? And if so, does that mean that it’s fair use? Applying the factors from the statute laid out above, it seems clear that 1) the work isn’t being used to make a profit, 2) the copyrighted work is broadcast content (which is much more legally susceptible to copying), and 3) the amount of copying is relatively minor (a few frames of a full-length TV show). However, the fourth factor – the ability of the copying to impact the market for or the value of the work – does seem to be at issue. If these materials are promotional, then can’t the argument be made there is a potential for these copies to have an impact on the value of the copyrighted works and therefore might be impermissible? Perhaps – but the question is, is that how content holders view the situation?
T. Kyle MacMahon, who runs the site, shared in an email this month that no content owner had ever asked him to take materials from the site down. In fact, he reports that he has even collaborated with content holders. (Maybe that is how he has produced stickers for sale including phrases made famous by The Real Housewives of Atlanta, The Real Housewives of New Jersey, The Real Housewives of Beverly Hills, and RuPaul’s Drag Race.) And it seems Mr. MacMahon is correct: Andy Cohen, Executive Vice President of Development and Talent at Bravo, apparently even likes the site (or at least its stickers).
RealityTVGifs shows us another side of the meme: 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 in very small bites. Just as the infamous Rick Roll video has survived to a whopping 62 million views despite YouTube’s strict policies against copyright infringement, content owners may genuinely derive benefit from their work remaining relevant as units of Internet culture.
The Internet certainly has changed the world of intellectual property law – and it will continue to do so. But it seems clear that while some memes may violate copyright laws as derivative works, the potential visibility benefits to content owners of having small bits of content passed around the Internet for free might be well worth allowing Internet users more freedom to copy.
A special note: I created the cover image for this blog before finding this on Memebase. This closeness is unintentional, and it very clearly demonstrates how easy it is for memes to inspire similar ideas both in their usages and as to their legal implications! — Phil