Your Website’s Popular Images – Copyright Infringement or Fair Use?

September 6, 2016 – Business, Technology

Takeaways

  • Before using a copyrighted meme for marketing confirm that you have an appropriate license from the copyright holder, unless your use of the meme comes under the “Fair Use” doctrine.
  • A Privacy or Publicly Rights Release may be required.
  • If your website hosting service receives a Take Down Notice: confirm copyright ownership; compare dollar demand v. meme’s fair market value; assess Fair Use defense; potential legal defense cost.

What Are “Memes”?

Many of those familiar cultural symbols – captioned photos, images of people and animals, catchphrases, video clips, aka “memes” – which pop up on websites and social media, go viral (and then mostly fade) are privately owned.

But unrestrained use and total disregard for copyright law is the memes’ ecosystem. It’s one more example of how the Internet’s open source ethos is pressuring intellectual property rights enforcement regimes, and how digital markets are challenging traditional economic rationales [1] by redefining private property.

Copyright Holders – Owners or Rent Seeking Trolls?

On one level disputes between originators and users over protected works are nothing new. However, the rise of the web is pitting copyright portfolio firms against legions of net users in a whack-a-mole guerrilla war.

While many individual rights holders don’t have the means to scare users away from their favorite memes, this is no issue for major stock photo services, talent agencies and viral “managers”, exemplified by Getty Images, which exist, depending on your point of view, either to “protect the copyright and livelihoods of photographers and artists who rely on licensing to earn a living and fund the creation of new works“ [2], or solely to control access to content, and extort economic rent or excessive, unearned profit which can’t be eliminated through competition.

Take Down / Pay Up Notices

Regardless, media houses use their technical and legal resources to police use of their image databases aggressively, sending out “take down” notices alleging copyright infringement. These letters may demand that a blogger posting an image from the holder’s database remove it and pay a fee or face a lawsuit, or more typically, pay a license fee for the prior use, a fee for a future period, and agree not to disclose payments.

What Is “Fair Use” of a Meme?

Copyright law bars the reproduction and distribution of copyrighted work, including images, without the copyright holder’s prior consent. Permission must be express and is typically granted in a license agreement for a fee. [3]

The “Fair Use” doctrine is an exception to the consent requirement and allows the use of the copyrighted work for certain purposes. Fair Use can be a defense against alleged infringement if the use meets all the requirements of Section 107 of the Copyright Act, which focuses on:

  1. The purpose and character of the use, including whether it’s for commercial (against fair use), or non-profit educational purposes (pro fair use); [4]
  2. The nature of the copyrighted work.
    Copyrighted work which is more factual and topical (e.g., a picture of a historical figure), rather than something creative (e.g., movie clip), favors fair use;
  3. The amount and significance of the part of the protected work used relative to the work as a whole.
    If the meme includes a short clip from a longer film, the amount, and substantiality of the use factor favors fair use; however, this may not be the same when the meme consists of a single photograph; and
  4. The effect of the use upon the market for, or value of, the copyrighted work.

Because a meme does not replace or compete with the original, it is unlikely to have an economic effect on the copyrighted work. [5]

Determining whether something is a fair use requires a careful assessment of the facts in relation to each of the four Fair Use factors. For example, use of a copyrighted meme (or a meme incorporating a copyrighted image or video) for commercial advertising may be problematical, even when the other Fair Use requirements are met.

Right of Privacy

In addition to copyright concerns, a meme incorporating a photo of a celebrity or an individual may raise right of publicity, or right of privacy issues. The right of publicity allows celebrities to control the commercial use of their images, and the right of privacy similarly bars use of a person’s likeness for commercial purposes.  A release should be negotiated prior to use.

Responding to TD Notice

If your website hosting service receives a DMCA [6] takedown notice about your meme (or other disputed content), it will generally remove it regardless of whether the meme actually is infringing. The hosting service must notify you promptly and you may submit a counter-notice requesting that the meme be restored. If you send such a notice, the content must be put back up unless the complaining party files suit within fourteen days.

  • If the complaining party has a good infringement claim, a counter-notice may elicit a lawsuit. So If you are not prepared to defend your use of the owner’s meme in a lawsuit, consider well before sending a counter-notice. [7]
  • But if a takedown notice has no basis in law or fact, and is simply meant to intimidate and an extract payoff, a counter-notice can make the threat go away.
  • Before sending a counter-notice claiming fair use, or otherwise responding to a takedown notice, confirm that the image in question is, in fact, the same or similar to the meme you are using.
  • Verify whether the complaining party actually owns copyright in the work in question. The meme may not be covered by copyright or a third party may hold the copyright to it.
  • Perform a fair market value analysis to determine whether the amount the meme or image is claimed to be worth is the actual fair market cost of the image. To calculate the fair market value, use the average price of comparable images found on stock photos sites. Use the average price as the fair market value. [8]
  1. W. Landes and R. Posner, “An Economic Analysis of Copyright Law 18 J. Leg. Stud. 325, (1989), at p. 325,
    http://cyber.law.harvard.edu/IPCoop/89land1.html
    “For copyright law to promote economic efficiency, its principal legal doctrines must, at least approximately, maximize the benefits from creating additional works minus both the losses from limiting access and the costs of administering copyright protection.”
  2. “Getty Images Goes Copyright Trolling After A Meme Penguin”, M. Masnick, techdirt, Sept. 8, 2015
  3. Copyright FAQs
  4. It’s well-established law that use of a copyrighted image for commentary, criticism, reporting or teaching satisfies the requirement of Fair Use requirement. In this regard, in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) the U.S. Supreme Court ruled that a parody of a meme may qualify as a fair use because it’s considered to be a commentary on the original work which transforms it into a new and different work. An image which is a satire or criticism of a copyrighted meme may also be considered to be fair use if can’t be mistaken for the meme. N. Martinez, “Posting an Internet Meme? You May Receive a Getty Letter”, Art Law Journal, Oct. 1, 2015,
    http://artlawjournal.com/internet-meme-getty-letter/
  5. A. Goldstein, “Technology: Internet memes pose legal questions”, Inside Counsel, June 21, 2013.
    http://www.insidecounsel.com/2013/06/21/technology-internet-memes-pose-legal-questions?slreturn=1473182536
  6. Digital Millennium Copyright Act of 1998.
  7. “Responding to a DMCA Takedown Notice Targeting Your Content”. Digital Media Law Project, Sept. 6, 2016.
    http://www.dmlp.org/legal-guide/responding-dmca-takedown-notice-targeting-your-content
  8. N. Martinez, fn. 4, supra.