Memelords unite! Eighth Circuit rejects fair use of meme in Griner v. King

Kats are always right!

Several years ago, the IPKat stated that the creation and distribution of GIFs does not necessarily appear to be a safe bet from a copyright perspective under the laws of the EU member states, as it would constitute a prima facie infringement given the closed list of exceptions and limitations. (See Katpost  here) With the introduction of Article 17 of the DSMD, this position has been reaffirmed, as online platforms must prevent the uploading of copyrighted content without proper authorisation, with the aim of ensuring that rightholders are remunerated for their works. 

Now, adding one more nail to the coffin of the #SaveOurMemes movement, a U.S. case concerning the creation and dissemination of a meme on social media saw the Court of Appeals clarify that “the fact that everyone else is doing it is not a particularly compelling justification” for the fair use doctrine under 17 U.S.C. § 107 to apply.

The Dispute’s Backstory

In 2020, Steven Arnold King, through the King for Congress Committee, used a version of the well-known Success Kid meme on its Twitter account as part of a political campaign. The meme featured the United States Capitol in the background with the cutline "FUND OUR MEMES!!!" prominently displayed and urging viewers to donate a few dollars to ensure the memes keep flowing. 

The meme in question belongs to Laney Griner, who captured a photo of her 11-month-old son in 2007. Once posted online, this image quickly reached new levels of virality, establishing itself as one of the earliest memes to circulate on the internet. Due to the unauthorized use of the meme template, Griner, who had already registered it with the U.S. Copyright Office in 2012, proceeded to sue the Congressman together with the Committee for copyright infringement and for violation of her son’s privacy.

King's original post

The District Court held the Committee, but not the Congressman, responsible for copyright infringement, although it awarded Griner only the statutory minimum damages. Both parties subsequently appealed: the Committee argued it had not infringed copyright due to an implied license and fair use of the template, while Griner appealed the denial of attorney’s fees and costs for the invasion of privacy claim, which was deemed moot.

The Success-ful Boy

Disregarding discussions about attorney costs, implied licenses, or invasions of privacy, the heart of the Eighth Circuit Court of Appeal's opinion lies in the analysis of fair use concerning memes.

According to 17 U.S.C. § 107 of the Copyright Act, to conclude that a use made of a work is fair, an assessment based on the following four factors is required: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

The court consistently referred to Andy Warhol Foundation v. Goldsmith and Campbell v. Acuff-Rose Music, Inc., emphasizing that the four statutory fair use factors should not be considered separately. Instead, they should be examined and weighed together in light of the purposes of copyright. However, the main discussion revolved around the commerciality of the meme and the role of transformativeness.

The court, in assessing the first factor, drew the line between commercial and non-profit use explaining that commerciality is likely to be weighed against a finding of fair use if it lacks transformativeness (i.e. adding a purpose or character to the original work).

As the commercial nature in this case is undisputed, the court proceeded to discussing the notion of transformativeness in the context of memes, emphasizing its relevance to the justification for the use. On that note, the court re-confirmed that “If an original work and a secondary use share the same or highly similar purposes, and the secondary use is of a commercial nature, the first factor is likely to weigh against fair use, absent some other justification for copying” (quoting once more from Andy Warhol Foundation v. Goldsmith ) This means the first factor would favour Griner, as controlling the commercial use aligns with the original purpose of the meme’s template, and the Committee’s justification for the reproduction and provision of the meme would not be particularly compelling since such use undermined the goal of copyright by shrinking the market opportunities of memes.

Furthermore, without commenting on the second factor, the Court quite laconically stated that the third factor also favoured Griner because the Committee used the most substantial part of the meme—Success Kid himself—while the fourth factor, lacking sufficient evidence to favour either party, led it to affirm the District Court's decision that the Committee did not fairly use the Success Kid template.

It is “Fair Use” not “Free Use”

Undoubtedly, the decision — correctly — takes a step towards an "if value/then right" direction, with the commerciality of the use playing the starring role in the assessment of fair use but leaving the nature of the work completely undiscussed. To oversimplify the decision (fair use is extremely fact-specific as a doctrine too), the reproduction and dissemination  of memes for non-commercial purposes is likely to be fair use, while the use of memes in for-profit scenarios may not be. Since "everyone is doing it" is not a compelling justification, memes, gifs, and other similar image-related works that flourish in the social media mundus have a value to copyright, and that value needs to be protected from unjustified free-riding attempts.

(What’s more, this decision adds to a string of defeats for King, with early campaign funding and support dwindling and his defeat in the June 2020 Republican primary to Randy Feenstra costing him his re-election.)