Memes have proliferated the internet since the dawn of social media. An image, usually taken entirely out of context, is paired with witty, often sarcastic banter whose only goal is to make you laugh. But did you know that there are often art licensing issues surrounding the use of top internet memes, and that you may have to be prepared to make a fair use argument if the owner of the images cries copyright infringement?
Take the case of the German blogger Geeksisters who recently received a Getty letter (otherwise known as the Getty extortion letter to our readers) concerning their “illegal” use of a top internet meme. Like any good blogger, Geeksisters often publishes content that’s been posted elsewhere, and the Socially Awkward Penguin is no exception: it features a penguin making an awkward pose, seeming to walk away from an uncomfortable situation, with captions reading things like “Happy Birthday…Same to you!” We think it’s quite easy to get the picture.
But as it turns out, it’s the picture that’s the problem. The Socially Awkward Penguin is actually a National Geographic photo taken by photographer George F. Mobley, and is available for licensing on Getty. In other words, if you want to use the image, you’ve got to get the art licensing rights from the owner of the image – in this case, Getty.
Since we all know by now that Getty doesn’t do anything for free, you may have already guessed that you’ll have to pay for those licensing rights, and Getty makes the process fairly simple with its art licensing calculator. The calculator asks you a variety of questions related to how you will use the image: Print or Web? Editorial or Advertising? Large audience or small? Judging by your answers to these (and a few other) questions, you’ll be quoted a rate for use. And if you fail to get the art licensing rights from Getty, be prepared to pay up: The Geeksisters were ordered to pay €785.40 in back licensing fees for posting the famous penguin meme to their website.
It may not surprise you that Geeksisters weren’t the first website to pay up, with Getty reportedly settling multiple infringement cases involving other websites who have posted the meme. But does Getty really have the right to do so, or are they just using their muscle to bully offenders who don’t know any better? Are there any defenses to using the meme? Do bloggers and website owners necessarily have to succumb to the Getty threat?
Can a Meme Be Considered a Fair Use Image?
We’ve previously discussed the fair use doctrine as it applies to posting copyrighted images, and how the doctrine can be used as a defense against allegations of copyright infringement. As we know, only a copyright holder has the exclusive rights to a creative work, and only they can grant a person a license to use their image or work. This exchange often involves an exchange of money, like Getty’s licensing rights calculator was designed to show. However, the fair use doctrine does make some exceptions if it can be shown that a potential infringer’s use of the image serves the public good by meeting certain exceptions.
The fair use doctrine is outlined by U.S. copyright laws, and the Copyright Office has created a Fair Use Index of the overwhelming case law on the subject. Courts tend to measure fair use by these four prongs outlined in § 107 of the Copyright Act:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
It’s been widely held that the first prong of fair use will be satisfied if you’re using the image for purposes of commentary, criticism, reporting, or teaching. In addition, the Supreme Court has unequivocally held that a parody and or a satire may qualify as a fair use image under the Copyright Act since it’s a commentary on an original work.
Parody and Satire for Fair Use Images
In a landmark decision involving parody, satire, and fair use, the Supreme Court set out to define parody and its importance when dealing with fair use. According to the Court, a parody is the “use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works.” Like other forms of comment or criticism, parody can provide a social benefit, “by shedding light on an earlier work, and, in the process, creating a new one.”
But how is a parody different than a satire? A satire, by all accounts, is not quite as transformative and therefore not a clear-cut case of fair use, since a Court defines a satire as something that “uses the work to criticize something else, and therefore requires justification for the very act of borrowing.”
While it may seem, then, that courts favor a parody over a satire, they go one step further in their analysis of the case, emphasizing that fair use analysis requires a Court to work its way through all the points, and be judged on a case-by-case basis. Meaning that even if a meme were to be viewed as a satire, it could show it merited fair use according to other prongs of the doctrine (for instance, if it can be shown that a consumer could never mistake the meme for its original commercial substitute), and therefore could likely pass the fair use test.
And in our particular case, it’s important to note that the Socially Awkward Penguin could easily be viewed as a parody – after all, the awkward stance of the penguin is a commentary on the difficulties people have in navigating their way through social situations, a parody on human nature illustrated by something as ridiculous as a penguin.
Responding to a Getty Letter for Internet Meme Licensing Fees
As we’ve previously detailed on Art Law Journal, there’s no need to cave fast under pressure when faced with a Getty letter take-down (or pay up). As one of the largest purveyors of copyrighted images, Getty has an aggressive approach to earning money through protecting its works, including a larger-than-life legal team that goes around fishing for infringers they can scare into submission. In fact, the company was recently sued for its deceptive practices as we’ve reported here.
If you’re like the Geeksisters and you’ve posted a meme that garnered a Getty letter arguing constitutes a violation of their copyright protections, it’s time to do your homework before you set out to respond. First, confirm that the image in question is in fact the same or similar to the image in the meme in question. Next, consider whether you think your use of the image constitutes fair use – while you would have to prove your allegation in a court should a dispute arise, the chances of Getty going through with a suit are less likely if there’s clearly more work involved than money.
Lastly, you might want to conduct a fair market value analysis in order to determine whether the figure they’re claiming the image is worth is the actual fair market cost of the image. To calculate the fair market value, just use the average price of comparable images found on stock photos sites. If the image in question is a dog taking a bath, then find 8 or so images of a dog taking a bath; use the average price as the fair market value.
As always, feel free to refer back to Art Law Journal posts for more detail on responding to a Getty letter.