Do memes infringe copyright?

I don’t know about you, but whenever I see a new meme (such as the fantabulous “Karma’s a bitch“) I don’t think about how it became popular, who created it, or even if it is appropriate. My first thought is always “what are the copyright implications”?  Yes, I need help.

I seem not to be alone in this, there are a growing number of scholarly articles dedicated at answering the most pressing legal question of our time (a few examples here, here and here). Most articles I’ve seen analyse US law,  and there the consensus appears to be that some memes would be covered under fair use, but it may well depend on the amount that has been copied from the original, and whether the use is commercial in nature.

Unless I am missing something (please send suggestions), there has been practically no academic interest in this subject from either a UK or European perspective. Perhaps my colleagues think that this is a frivolous topic, or perhaps the lack of enforcement has made everyone assume that this is not an important issue. I’m not one to shy away from frivolous subjects, so I’ve been looking at this for a little while.

Interestingly, the question may be about to become more relevant for a couple of reasons. Firstly, some creators have started to sue (and threaten to sue) for copyright infringement in memes. Recently, Grumpy Cat won a copyright and trade mark infringement case worth over $700k USD in damages. Then take the “Distracted Boyfriend” picture. The meme has exploded in the last few months, but the photographer that took the picture seems ambivalent about going after people for re-using his photograph. While accepting the popularity of the picture, he has expressed that everyone using and modifying the picture is doing so illegally, and he reserves the right to go after uses that he considers are using the images “in a pejorative, offensive or any way that can harm the models or me.” So far, no suit has been filed.

Secondly, the European Commission made a proposal for a new copyright directive in 2016, which is under discussion right now. There’s a lot to talk about many of the provisions contained in this directive (such as data mining), but now the German delegation has published a comment on Article 13, which deals with platform liability for infringing content uploaded by users (thanks to Fix Copyright for the heads up). The German document contains an eye-opening proposal:

“The European legislator could also examine the possibility of permitting the non-commercial use of copyrighted content by private individuals, provided that this does not endanger the primary markets of the cultural industries: This includes, for example, sharing photos with a limited circle of recipients or using memes. At the same time, a lump sum remuneration for creators (“compensated exception and limitation to copyright “) could be provided for these uses, which would have to be paid by the qualified platform. This model has long since proved its worth in compensated private copying.”

Perhaps some background is needed to understand this. Currently, European copyright law allows for private copying of copyright works provided that some adequate remuneration is given to the owner. For example, you are allowed to make a digital copy of your music CDs (but not in the UK). The remuneration is paid in the shape of levies collected on the sale of devices capable of making copies, such as blank CDs and memory cards. What the German proposal states is that something similar can be arranged for all platforms which share images and memes.

This is an incredible proposal with astounding implications (apologies for the use of superlatives, I’m in shock).

The main problem with this proposal is of course that it makes two big assumptions, that memes constitute copyright infringement, and that such uses require that some remuneration is given to the creator. But the need for an author to be compensated rests entirely on the question of whether a meme is infringing copyright in the first place, and this is may be a more complicated issue, depending on what type of meme we are talking about.

The first question to ask is whether the original work has copyright, and we have to assume that in most instances they do have it. For the purpose of this analysis I will divide memes into four categories (this is itself inaccurate, but will do for now): stand-alone pictures, viral videos, gifs, and screen captures of films and TV series. In the case of an original video such as organ cat or technoviking, the video itself is worthy of copyright, and the maker could make money from its reproduction. In these cases infringement would be easier to detect and enforce, and creators could use automated systems such as YouTube’s ContentID to gain money from views. In the case of images like the distracted boyfriend, we can assume that the picture will have copyright in its own right, and therefore further use could be infringement. Similarly, film has copyright protection, and making a screen shot of a film and even making a gif could be infringing.

But infringement is not automatic. In order to infringe copyright by making an unauthorised copy of a work and distributing it on the internet, a substantial part of the work has to have been taken. What is substantial? This is a question elucidated in several cases. In Designer’s Guild v Russell Williams, the House of Lords defines substantial  as “a matter of impression, for whether the part taken is substantial must be determined by its quality rather than its quantity. It depends upon its importance to the copyright work. It does not depend upon its importance to the defendants’ work…”. In Infopaq, a cumulative effect of several smaller extractions from a work could be enough to warrant the existence of substantial copying. And more recently we have the interesting case of England And Wales Cricket Board Ltd v Tixdaq Ltd, in which 8 second cricket clips in an app and social media operated by the defendants was enough to be considered as substantial by the Court. Arnold J explains:

“I do not consider that it follows that reproduction of any part of a broadcast or first fixation amounts to an infringement. […] At least in the case of broadcasts and first fixations of films of sporting events, broadcasters and producers invest in the production of broadcasts and first fixations knowing, first, that some parts of the footage of an event (e.g. wickets in the case of cricket matches and goals in the case of football matches) will be more interesting to viewers than other parts and, secondly, that there is a market for highlights programmes and the like in addition to the market for continuous live coverage.”

In other words, if an important a part of a work is reproduced, the more likely we are to have infringement because a substantial part has been copied.

With regards to memes, it’s difficult to assert that any of the above has taken place, and it will depend on a case by case basis. With regards to a copying and distribution of the entirety of a work, such as a video or a photograph, it is easy to see how this could be infringing. If I take the video of two otters holding hands, and I reproduce it in any way, I could very likely be infringing copyright. The same would go with any picture. But when it comes to animated gifs and screenshots, then we may be in more difficult territory. Take a screenshot and meme from the TV Series The Good Place:

While s17(4) of the CDPA says that copyright in a film can be infringed by making a picture of a substantial part of the work, one could argue that this is not substantial enough. Is this substantial? It’s just a picture of the protagonist swearing, what makes the image meme-worthy is the added text. Similarly we could do the same with most animated gifs taken from film, we would need to determine if the gif is taken from a substantial part of the original.

For the sake of argument, let’s assume that most memes are infringing (although some may not be), we would then need to see if there are any defences to the infringement. Here we are in more explored territory. As we do not have a open-ended system such as fair use, it is difficult to see how memes could fall under most fair dealing defences, as this is an exhaustive list that includes things like educational use, research, commentary, parody and news reporting, just to name a few. Perhaps a few news-worthy memes such as falling asteroids or other natural events could apply, but for the most part I would say that most memes would not be covered under fair dealing.

This is the main difference with US law. Fair use has both transformative uses and a very open-ended definition of parody. In the UK jurisdictions there’s no such a thing, and most importantly, the parody exception is rather limited. In the case of Deckmyn v Vandersteenoffers, the CJEU commented that the concept of parody must be interpreted by considering the usual meaning of the terms in everyday language, while also taking into account the context in which they occur and the purposes of the rules of which they are part. Perhaps most important for this subject, the court establishes that:

“…the essential characteristics of parody, are, first, to evoke an existing work, while being noticeably different from it, and secondly, to constitute an expression of humour or mockery. The concept of ‘parody’, within the meaning of that provision, is not subject to the conditions that the parody should display an original character of its own, other than that of displaying noticeable differences with respect to the original parodied work; that it could reasonably be attributed to a person other than the author of the original work itself; that it should relate to the original work itself or mention the source of the parodied work.”

These seem to set a very specific boundary for what should be considered a parody. Firstly, a parody is always a copy, and that while there must be differences as the parody is a separate work in its own right, the copy must at the same time be recognisable to the public at which the parody is directed, otherwise it would not be a parody. While the court helpfully dissects the concepts of parody, the question of the intent of the parody, whether it is to provoke humour or to mock, is more difficult, as the intent may be humorous, but it might be deemed to be mocking the original. With regards to memes, some may be parodies under this definition, but quite a lot would not apply.

Concluding, the question of copyright in memes may be resurrected because of the reasons highlighted above. I am disheartened that there could be anything that could affect the vibrant culture of memes that we have online. The power of memes is impressive, and even many TV shows will be the first to create gifs on their own accord, as a healthy user-generated culture using memes means that fans are engaged with the property. Seeing memes as only an act of infringement misses the whole point.

I leave you with this gif of two llamas on the run. You’re welcome.