Memes have become the internet’s native language, rapidly spreading ideas, humor, and cultural references across the digital landscape. Among the vast ocean of memes, the “Where Are You?” meme stands out for its versatility and widespread use. Often featuring a split-screen image – one side depicting an eagerly waiting person or character, and the other side showing emptiness or a contrasting scene – this meme encapsulates feelings of anticipation, disappointment, or humorous irony in various contexts. But as memes like “Where Are You?” become increasingly integrated into our online communication and even commercial products, a crucial question arises: where does copyright law stand in this rapidly evolving digital world?
This question struck me recently while playing “What Do You Meme?”, a popular party game that cleverly combines the structure of “Cards Against Humanity” with the internet’s obsession with memes. Created by Elliot Tebele, known online as @FuckJerry, the game is simple yet engaging. Players match caption cards to picture cards featuring popular meme images, aiming for the funniest combination to impress the judge. While thoroughly entertaining, my legal instincts as a law student kicked in, prompting me to consider the copyright implications. Are the creators of “What Do You Meme?” potentially navigating a legal gray area by using images readily available online, or does the nature of meme usage fall under ‘fair use’?
This article delves into the fascinating intersection of meme culture and copyright law, using the “Where Are You?” meme and games like “What Do You Meme?” as a lens to explore the complexities of fair use in the digital age. We’ll analyze whether the transformative nature of memes and their incorporation into games provides a defense against copyright infringement, or if there are grounds for concern for both meme creators and users.
Understanding Meme Copyright: A Digital Dilemma
Memes, by their very nature, are derivative works. They often repurpose existing images, videos, or even phrases, adding new captions or contexts to create humor or commentary. The “Where Are You?” meme, for example, frequently utilizes stills from movies, cartoons, or stock photos, paired with text that dramatically changes the original meaning.
Copyright law, however, automatically protects original works of authorship, including photographs and artwork. This protection grants the copyright holder exclusive rights to reproduce, distribute, and create derivative works based on their original creation. Therefore, at first glance, the widespread use of copyrighted images in memes appears to be a potential infringement.
Creators like @FuckJerry and @TheFatJewish built their online empires by curating and captioning memes, often without explicit permission from the original image creators. While this practice contributed to the viral spread of memes and internet culture as we know it, it also sparked debate about the rights of original content creators. The “What Do You Meme?” game, which gained significant popularity after a successful Kickstarter campaign and is now commercially available, brings this copyright question into sharper focus. If the game utilizes copyrighted images without licenses, is it operating outside the boundaries of copyright law, or does the concept of “fair use” provide a legal shield?
Fair Use and Memes: Is “Where Are You?” Protected?
The concept of “fair use” is a cornerstone of US copyright law, allowing limited use of copyrighted material without permission for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research. To determine whether a use qualifies as fair use, courts apply a four-factor test:
- The purpose and character of the use: Is the new work transformative?
- The nature of the copyrighted work: Is the original work factual or creative?
- The amount and substantiality of the portion used: How much of the original work is used?
- The effect of the use on the market for the original work: Does the new use harm the market for the original?
Let’s analyze the “Where Are You?” meme, and by extension, the use of meme images in “What Do You Meme?”, through the lens of these four factors:
1. Transformative Use: Giving Memes a New Voice
The Supreme Court case Campbell v. Acuff Rose Music, Inc. emphasized the importance of “transformative use” in fair use analysis. Transformative use occurs when a new work adds “new expression, meaning, or message” to the original copyrighted work.
Memes, arguably, are inherently transformative. By adding humorous or ironic captions to existing images, memes like “Where Are You?” fundamentally alter the original purpose and message of the image. An image initially intended for a movie scene or advertisement is repurposed to convey a completely different emotion or idea in the meme context. In the case of “What Do You Meme?”, the images are further transformed from their original online context into game components, serving a new interactive and entertainment purpose. This transformation is similar to the Bill Graham Archives v. Dorling Kindersley case, where the court found that using concert posters in a historical book was fair use because the posters’ purpose shifted from artistic display to historical documentation.
2. Nature of the Copyrighted Work: Creative vs. Factual Images
This factor tends to weigh against fair use for memes. Copyright law offers greater protection to creative works, such as artistic photographs and illustrations, than to factual works. Meme images often fall into the category of creative works, meaning they are afforded strong copyright protection. However, this factor is not decisive and is considered alongside the other factors.
3. Amount and Substantiality: Using the Whole Image
Memes typically use the entirety of an image. This factor, on its face, appears to weigh against fair use. However, courts have recognized that using an entire work may be permissible if it is necessary to achieve the transformative purpose. The Perfect 10, Inc. v. Amazon.com, Inc. case established that using entire images as thumbnails for a search engine was fair use because displaying the full image was essential for the search engine’s function. Similarly, using the full image is arguably necessary for a meme to effectively convey its message and for the “What Do You Meme?” game to function as intended. The visual recognition of the original image is crucial for both meme comprehension and gameplay.
4. Market Effect: Does “Where Are You?” Harm the Original Market?
This is often the most complex factor. Courts consider whether the new use usurps the market for the original work or potential derivative markets that the copyright holder might exploit. In the context of memes, it’s debatable whether their use significantly harms the market for the original images. In many cases, memes may even increase the visibility and popularity of the original source.
However, a crucial argument arises regarding derivative markets. Should original image creators have the right to license their images for products like “What Do You Meme?”? This is where the legal battleground potentially lies. While the immediate market harm may be minimal, the question of potential licensing revenue for meme-based products could be a point of contention in copyright disputes.
Implications and Creator Rights in the Meme-iverse
Analyzing the four fair use factors suggests a plausible argument that meme usage, including the “Where Are You?” meme and its incorporation into games, could be considered fair use. The transformative nature of memes, where original images are given new meaning and purpose through captions and context, is a strong factor in this analysis.
However, the legal landscape surrounding memes and copyright is still evolving. The line between transformative use and infringement can be blurry, and courts may weigh the factors differently depending on the specific context and facts of a case. It’s conceivable that a court could find that the commercial use of meme images in a game like “What Do You Meme?” is not sufficiently transformative or that it unduly harms the potential market for licensing meme images.
Ultimately, the copyright status of memes remains a nuanced and debated topic. While memes thrive on sharing and repurposing content, the rights of original creators should also be considered. As memes continue to permeate online culture and even enter commercial spaces, a clearer legal framework may be needed to balance creativity, free expression, and copyright protection in the digital age. Until then, the “Where Are You?” meme, and countless others, exist in a fascinating space where internet culture and copyright law continue to intersect and challenge each other.
References
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).
Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006).
David G. Savage, “Supreme Court may be about to legalize sports betting in states that want it” Los Angeles Times (Decemer 4, 2017), http://www.latimes.com/politics/la-na-pol-court-sports-betting-20171204-story.html
Lorelei Laird, “Do memes violate copyright law?” ABA Journal (September 2015), http://www.abajournal.com/magazine/article/do_memes_violate_copyright_law
Maya Kosoff, “This Instagram User is Going Viral Without Taking Any of His Own Pictures,” Business Insider (October 6, 2014), http://www.businessinsider.com/these-instagram-users-are-going-viral-without-taking-any-of-their-own-pictures-2014-9
Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007)
https://whatdoyoumeme.com/pages/terms
https://whatdoyoumeme.com/pages/copyright.
https://www.kickstarter.com/projects/whatdoyoumeme/what-do-you-memetm
