The Trouble With Memes

This week, this writer noticed that at least two legal blogs are warning about Memes.

For the purpose of this discussion, a meme is an image or short clip of video, to which a caption is added by someone other than the copyright owner of the image or short clip, and it is forwarded across social media by thousands with no regard to the copyrights of the copyright owner, or the moral rights of the subject of the image.

Meme enthusiasts would probably say that the use of the image is "transformative", or that the use is "fair", because the image is only half the work, and the text is the other half --which is not a definition of Fair Use-- or that it is commentary, or parody, or being used to disseminate news or opinion, or to educate.

Memes are like emoticons. They are a quick, convenient way for the inarticulate to spread someone else's expression of an opinion without having to think for themselves. To date, the re-tweeter has also been able to share the meme without any liability or responsibility.  That may change, even if copyright law explicitly protects parody, criticism, and pastiche.

Legal blogger Georgia Shriane for Boyes Turner LLP (specializing in European Law and UK law) warns that meme law is coming....

Lexology link:
https://www.lexology.com/library/detail.aspx?g=1191618e-8200-49db-b9d7-c89d494d5546&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2019-03-29&utm_term=

The original article can be found here:
https://www.boyesturner.com/article/article-13-meme-law-is-coming

Even if the meme is protected, if content platforms use automation to filter out copyrighted images, the bots may not perceive the difference between "a good meme" and copyright infringement. That's not all.

See also, from 2017, commentary on a weeping athlete, with a question about the consequences if this meme is used for commercial advertising
https://www.internetandtechnologylaw.com/unauthorized-meme-crying-jordon/#page=1

Also, see the commentary by Claire Jones of  Novagraaf  for when memes are used gratuitously, with the sole apparent purpose of tormenting a public figure:
https://s3.amazonaws.com/documents.lexology.com/78503cc7-93e3-470e-8a7d-37ffcbee9a56.pdf

Or read it on Lexology...
https://www.lexology.com/library/detail.aspx?g=c470fc1e-d61e-4f98-a3b3-d113233998db

The most ominous shot across the bows for meme sharers comes from legal blogger  Jordyn Eisenpress  writing for the law firm Frankfurt Kurnit Klein& Seltz PC  "Popular Meme Account Sued For Copyright Infringement And Other Claims.   

Read it on Lexology  (but beware, gentle readers: there is a very vulgar word as part of the defendant's twitter handle.)
https://www.lexology.com/library/detail.aspx?g=33280fc3-a77a-41c2-b429-f998d6f22556&utm_source=lexology+daily+newsfeed&utm_medium=html+email&utm_campaign=lexology+subscriber+daily+feed&utm_content=lexology+daily+newsfeed+2019-03-28&utm_term=

Or find the very recent original here, (also including the shocking handle).
https://advertisinglaw.fkks.com/post/102fh6p/popular-meme-account-sued-for-copyright-infringement-and-other-claims

Apparently, meme enthusiasts in New York should take note, and be very careful going forward.

All the best,
Rowena Cherry