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Can You Copyright a Meme?

July 17, 2018

 

Internet memes have taken over the web in the last decade or so since social media and image sharing became more widespread. They are great sources for laughs, but whether those laughs can end in copyright lawsuits is a little less clear. If you enjoy a good meme and spend an average amount of time on the internet, you have probably seen or shared a meme at some point. Perhaps you have even created your own meme. Regardless of whether you are using or creating memes, here are a few things you should know about the legality behind sharing internet memes.

 

What is a Copyright?

 

Original works of expression, such as art, music, and writing automatically belong to their author once created. However, registering an official copyright on those works of expression can give the author an added layer of protection. With a registered copyright, the author of the creative work has the exclusive right to make copies of, distribute, perform, and display the work.

 

A meme is a little different from other works of art because the entire point of a meme is that it is widely shared across the internet. No one creates a meme and publishes it on the internet in hopes that no one sees it. This is where fair use comes in.

 

What is Fair Use?

 

Fair use is an exception to the general copyright rule that the copyright owner has exclusive rights to make copies of, distribute, perform, and display the copyrighted work. In order to determine whether a meme was made for fair use, the following four factors should be taken into consideration:

  • The purpose and character of the use of the meme,

  • The nature of the meme,

  • The amount of the meme used in relation to the whole copyrighted work, and

  • The effect that using the meme will have on the market.

Are Memes Fair Use?

 

Courts have held that the first prong of the fair use test is satisfied if the purpose of the copyrighted work was for commentary, criticism, reporting, or teaching. Under the Copyright Act, commentary can include satire or parody. Typically, memes are created for commentary or criticism of current events or cultural norms and would thus satisfy the first prong. Additionally, most memes draw their humor from parody or satire of a widely known fact or behavior, so it would, in most cases, be easy to argue that a meme’s purpose is for commentary.

 

However, the remaining prongs must also be considered. It is important to consider whether the creator of the meme or the person sharing the meme is making a revenue from sharing the meme and whether the meme has potential to harm the copyright owner’s brand. If you are concerned about your meme being shared over the internet, you may want to think about all of the above factors before pursuing any type of legal action against those who are sharing your meme.

 

If you have more questions about copyrights and internet memes, speak with one of the experienced patent attorneys at Verhagen Bennett today. Contact us via our website or at 310-917-1064 for your free consultation.

 

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