The internet has so many copyright issues, but consequences are relatively rare. While the internet might seem like the Wild West, that is not always the case. As top entertainment lawyer Damien Granderson explains, memes can put parties at risk of copyright infringement.
Learn how memes work from a legal standpoint, as well as Granderson’s tips to help businesses avoid meme copyright infringement.
What exactly are memes?
The word “meme” has been around as early as 1953. Today, a meme is a viral piece of content that is shared online. With memes, users take a meme template, add their own flair to it, and repost it for the world to enjoy. Memes are usually humorous in nature and can be in any format, from static images to viral videos on TikTok.
According to Damien Granderson, memes are considered “derivative works.” This means they take someone else’s work and alter it, so it serves a different purpose. For example, if you take a funny stock photo and add a caption to it, voila — you have a meme.
The problem is that memes rarely follow copyright laws. Even derivative works require legal permission from the copyright holder, so memes are at risk of infringement.
What is the DMCA? Damien Granderson explains
The Digital Millennium Copyright Act of 1998 provides that sending copyrighted images through a digital platform is a copyright infringement and has increased the penalties for such use online. Under the DMCA, copyright holders have the right to request licensing fees or issue take-down notices to anyone using their works.
With that said, the DMCA made it possible for copyright holders to protect their works online. Because of how the DMCA is structured, Damien Granderson explains that many of the memes we enjoy on our social media feeds are infringing on the original copyright.
This is because the original work backing up a meme has a copyright attached to it. Even if you create a meme yourself, you are still likely infringing if you use someone else’s photo or audio as the basis for the meme.
For example, meme-makers commonly source funny stock photos from Getty Images without authorization. To enforce rights to their copyrighted work, Getty Images frequently sends demand letters demanding meme-makers to either pay licensing fees or remove the image. Under the DMCA, Getty Images and countless other copyright holders have the power to protect their works — even if they are used in a meme.
Do memes violate copyright?
So, do memes violate copyright laws? It depends.
Damien Granderson says that many memes fall under fair use, which means that users can continue to use the image in question even if they are not the copyright holder. The issue is that courts determine fair use on a case-by-case basis, usually looking at factors such as:
- Whether the meme is generating money for the meme-maker
- How much of the original work the meme uses
- Whether the meme includes the likeness of famous characters or people
- The potential of the meme to harm the copyright owner’s income-earning potential
But even if a meme violates copyright, a copyright holder has to take the case to court. Essentially, a copyright holder must have the resources to take the issue to court, and many copyright holders just do not have the time and money to make that undertaking for each instance of infringement.
Even if a copyright holder wanted to go after an infringing meme, Damien Granderson explains that it is like fighting the hydra. Once you take the meme down once, there are millions of other copies to go after. Moreover, memes can serve as a promotional tool for the copyrighted work. That is the case with websites like GIPHY, which promote movies and TV shows to millions of people around the world.
Therefore, copyright infringement court cases over memes tend to be less common but are always possible.
Damien Granderson’s best practices for meme copyright
Although nothing is clear-cut on the internet, Damien Granderson outlines these five best practices for anyone interested in making copyright-safe memes.
- Avoid using memes for business purposes
Courts generally consider memes to be fair use if they are posted on someone’s personal Instagram account. However, if you use the meme for business purposes, a judge could rule that you are using it to earn a living — which hurts the marketable value of the work for the copyright owner. For that reason, it is best for businesses to license rights for all meme-related media.
- Know how to handle demand letters
If you receive a demand letter about a meme you created or shared, chances are good that the copyright owner will request licensing fees or for demand you to take down their work.
However, not all demand letters hold up in court — as Damien Granderson notes, most are designed to scare the alleged infringer into complying with the copyright holder’s demands. In order to effectively respond to demand letters, Granderson recommends:
- Confirming the work in question is one you used.
- Contacting an attorney to determine if the letter is legally accurate and enforceable.
- Checking if the work is could be considered fair use. For example, if the work is commentary, humor, or satire on a personal account, it could be considered fair use by the courts.
- Request permission
According to Damien Granderson, businesses should obtain permission from the copyright holder to post memes. To obtain the necessary rights to post memes, a business should execute a contract with the copyright owners, which may include:
- Pay licensing fees for use of the work.
- Buy rights to both the work and to a person’s likeness, if needed.
- Read all licensing terms
Make sure your licensing terms are favorable. If you are using memes to promote your business, ensure the licensing contract allows for commercial use. Damien Granderson says using a meme on your company blog can constitute “commercial use,” so ensure your licensing terms match up with how you plan to use the meme.
- Avoid reposting other people’s memes
Memes usually fall under fair use, but if you are using someone else’s meme and passing it off as your own, that is considered infringement. Fair use is based on transforming original works, so if you are not iterating on the original in some way, Damien Granderson says you could be liable for copyright infringement.
If you use someone else’s meme, it is a good idea to get their permission first. Moreover, you should provide full credit to the creator.
Brands: Tread carefully with promotional memes
Instagram users post over one million memes to the platform every day. They have become so prolific that no one thinks twice about copyright infringement when creating or sharing a funny meme. Generally speaking, copyright holders tend not to go after individuals using works for personal accounts — but businesses should tread lightly. As Damien Granderson warns, any type of commercial use could put your business at risk of a copyright lawsuit.
About Damien Granderson
After graduating from Albany Law School in 2003, Damien Granderson has had a thriving career in entertainment law for over 15 years. Granderson represents top-tier recording artists, actors, athletes, executives, and record and media companies. As an African-American entrepreneur, Granderson’s inclusive approach to representation provides voices for those with diverse experiences to share their art in the entertainment business. With offices in Beverly Hills and New York, Damien Granderson is a founder of premier boutique entertainment law firm Granderson Des Rochers, LLP. His practice focuses on transactions for his talented clients in music, endorsements, sponsorships, fashion, branding, and media.