But fair use cases have been both won and lost on this factor, so we’re going to talk about what “amount and substantiality” of the work actually means. (3) Amount and substantiality of original work used in the derivative workįor meme purposes, this factor is probably the least important, because to create a meme you are generally using the entirety of a photograph. But the photographer who snapped LeBron freaking out at J.R Smith during the NBA finals would probably be considered to have created a factual work, because he was simply engaged in what one court has termed “quintessential photojournalism.” You have much more leeway to copy from a factual work than you do from a creative one, which is a helpful fact to keep in your back pocket for the next time an Instagram commenter accuses you of infringement. The “ boyfriend looking away” meme, for instance, is more likely to be considered a creative work because the stock photographer conceptualized and staged the photo himself. However, because memes generally use actual photographs, determining when a photograph is factual or creative gets a little bit trickier. “Nature of the work” generally just refers to whether a copyrighted work is factual or creative. (2) Nature of the original copyrighted work

Because Koons elevated the original work with new meaning, the court found that his use of the photograph in his collage had been fair.

The original photograph had been for a spread in a fashion magazine showing off the trends of the season Koons’ work, in contrast, was meant to be artistic commentary about capitalism and material consumption. The idea of transformation really comes down to two big questions: Has the material you took from the original work been transformed by adding new expression or meaning? And was value added to the original work in the form of new insight or meaning? To put it more simply: Have you done something other than republish or repackage the original work? If you’ve added new insight or meaning to an original work, you’re probably in the clear.įor instance, the artist Jeff Koons was sued by a photographer after repurposing one of his images in a collage. And it’s a broad question: “Purpose and character” has long been held to refer to the degree of transformation between the original and derivative work. This is the most important part of any question of fair use. (1) Purpose and character of the derivative work Here’s why:Īs mentioned above, there are four factors that courts weigh when determining if appropriation of a prior work without permission is acceptable. Most memes are probably covered by the fair use doctrine. Like it or not, memes have become a way for this generation to engage in discourse and create a community. The ability to appropriate some of a copyrighted original work incentivizes creative output, something most societies want to encourage. Article 1, section 8 tells us that it is our government’s duty to “promote the Progress of Science and useful Arts.” And, as the Supreme Court noted in seminal fair use case Campbell v Acuff-Rose, it was apparent even to our founding fathers that some idea of fair use is necessary to fulfill the purpose of promoting arts and sciences.

Part of the Copyright Act, the fair use doctrine codifies into law the idea that you can, in fact, take someone’s original work without permission, and lays out four factors to determine when doing so is acceptable.įirst, some background: The idea of copyright is, somewhat surprisingly, actually written into the Constitution. The most important piece of law to meme-creators is the Fair Use Doctrine. Below, we discuss some of the important legal doctrines to meme-makers, and cases that may be applicable. But you, meme-maker, are smarter than that, and you want to educate as much as possible on the industry you have chosen. Intellectual property jurisprudence has yet to really confront the internet’s ecosystem of decentralized content creation. They respond by telling you “this is the internet.” Good job.Īnd then someone steals one of your memes for their own page, and they delete your watermark, and try to pass off your meme as their own. You have managed to create a career for yourself just by being Very Online and humorous, and we are all jealous of you. Everything is going great: you’re racking up thousands of followers per day, each post getting hundreds of thousands of likes-life is good. So you have a popular Instagram account on which you post original memes for mass consumption and potential monetization. You should contact an attorney to obtain advice with respect to any particular issue or problem. The materials available at this website are for informational purposes only and not for the purpose of providing legal advice.

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