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Political ad’s meme isn’t permissible fair use of copyrighted image
If you had any doubts about the power of online memes, they’re now the target of litigation. A recent ruling sheds light on how copyright law intersects with the world of memes, which began largely as funny images circulated widely online with various jokes attached.
Politics infects meme
Laney Griner snapped a photo of her 11-month-old son making a fist on the beach. It became one of the first popular online memes, generally referred to as “Success Kid.”
In 2012, Griner registered the Success Kid template with the U.S. Copyright Office. She then licensed it to several major companies — including Microsoft and Coca-Cola — for use in advertising.
The Steve King for Congress Committee posted a version of the meme on its website, Facebook page, Twitter account and other places in 2020. This version placed the kid in front of the U.S. Capitol and solicited funding for more memes. The committee never sought or received permission to use the template.
After the committee denied Griner’s request to remove the meme, she sued for copyright infringement. A jury found the committee “innocently” infringed the copyright and awarded her damages.
Contending that it made fair use of the template, the committee appealed the damages award to the U.S. Court of Appeals for the Eighth Circuit.
Fair use finding sticks
The court evaluated the four factors that define fair use:
- The purpose and character of the use (including whether it’s of a commercial nature),
- The nature of the copyrighted work,
- The amount and substantiality of the portion used compared to the work as a whole, and
- The effect of the use on the potential market for or value of the work.
The committee conceded the second factor but argued the remaining factors favored a fair use finding.
In assessing the first factor, the Eighth Circuit weighed the commerciality of the use against its “transformativeness.” The court found that the committee’s use was purely commercial. And the committee’s creation and dissemination of a meme didn’t add a further purpose or different character to the template. Notably, the court disregarded the addition of the Capitol building, photo cropping and “fund our memes” heading.
The third factor also weighed against fair use because the committee used the “heart” of the template — the kid himself. The fourth factor was neutral, as it was difficult to assess the impact of the committee’s use on the template’s commerciality.
The court concluded that the fair use factors weighed heavily for Griner. It thus upheld the jury’s finding that the meme wasn’t fair use of the template.
Money matters
The Eighth Circuit emphasized that memes used commercially are subject to stricter copyright standards than those used noncommercially. The latter, it said, are often fair use.
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