United we Meme. Divided we Infringe?

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Creating and sharing memes is a part of daily life on the Internet, particularly when a current event attracts a great deal of press. Most recently, the controversy over United Airlines having passenger David Dao violently removed from a flight spawned a whole host of memes. These memes ranged from those referencing the Hunger Games books/movies (with image of characters from movie with “Welcome to United Flight 3411. We still need three more ‘volunteers’” superimposed) to others referring to the movie Fight Club (“United Airlines Introduces New Cabin Class” including drawing of airplane cabin with an area designated as “Fight Club”). These memes were created and then shared all over social media, but the likelihood is that no one paid any money for the right to use the images or movie/book references. And certainly no one paid to re-post the memes that others have shared, but this does not mean that the content is not subject to copyright protection.

Under the Copyright Act, a copyright holder has the exclusive right to make (or give others the permission to make) derivative works based on the original copyrighted work. In the most traditional sense, many Internet memes may be considered derivative works, as they are works based on or derived from an existing work.

Fair use can be an affirmative defense to a claim of copyright infringement. Fair use creates an exception to copyright infringement, allowing the infringer to continue using the work. The U.S. Supreme Court developed a four-fact test to determine whether use of a copyrighted work qualifies as fair use, but there is no blanket rule because the test is applied on a case-by-case basis.

Whether the meme that you create and/or share avoids copyright infringement may come down to whether the meme is being used for commercial or non-commercial purposes. It is unlikely that you will face a copyright infringement lawsuit for creating, posting or sharing your favorite United Airlines meme on your personal Facebook page. However, your business website or Facebook page could be a different story. To-date there have not been many instances where meme creators (or sharers) have been sued for copyright infringement, but whether an infringement action is pursued may depend in large part as to who owns the original copyrighted work (if it is Getty Images, then there is risk as Getty is known for sending letters demanding licensing fees) and whether the copyright holder sees some value in having their images used in memes as it could further spread/promote their brand.

For more information on this topic, please visit our Social Media Law service page, which is part of our Internet & eCommerce Practice.

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