Law and Technology

Sharing memes digitally could land you in hot water

Copyright laws do not fully protect those who distribute photos, videos online.

May 25, 2018
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(As seen on WZZM TV 13) Memes are everywhere on the internet.

It’s almost impossible to escape them on any social media platform. They can be used for communication without uttering a word, whether it is for comedic purposes or sending out subliminal messages.

And while memes can be fun and games, sometimes there is an ultimate price to pay. Memes generally originate from someone else’s artwork, such as a photograph, painting or a scene from a video, and then it is altered by changing the original purpose of the artwork by either adding or detracting color, a person, a place or words in that image.

That alteration, according to Gardner Law Burkhart & Ondersma attorney Karl Ondersma, is called a derivative work.

“It is a separate creation, but it is someone else’s copyrighted work,” Ondersma said. “It is possible when you are doing that it can be copyright infringement if you are creating a meme without a license, authority or authorization of the original underlying work, then there is a possibility that you will be faced with a copyright infringement allegation.”

Ondersma said copyright infringement laws also apply to those images that are not registered with the U.S. Copyright office.

Millions of memes are liked and shared throughout many social media platforms, and while the ones who altered the meme in the first place may never be tracked down, the person who is caught sharing the meme can be legally penalized, Ondersma said.

“It doesn’t necessarily matter who created it if someone is using it,” Ondersma said. “If you are down the chain and you get a copy of it and you start using it, even though you didn’t create it, you can still be liable for the reproduction, transmission and the use of it.”

The Fair Use Act helps protect users who are sharing images. The U.S. Copyright Office describes it as promoting “freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances … such as criticism, comment, news reporting, teaching, scholarship, and research.”

However, there have been prominent lawsuits in the past surrounding this very issue, in which Getty Images has issued cease and desist letters, Ondersma said. According to the Huffington Post, Getty Images, a stock photo agency, requested $875 from GetDigital after it used what is known as the “Socially Awkward Penguin” meme without Getty’s permission. (Getty owns the original photo of the penguin in the meme.) In addition to paying the fee, GetDigital also had to remove the image from its website.

Although the copyright law gives meme users slight leeway in how people use memes, the law, however, strictly prohibits the use of images that are not the original owner’s for commercial use.

If a copyright owner of a product sees their product displayed in a meme on a commercial website for sale, and that product image is used without permission, the copyright infringer can face legal ramifications, Ondersma said.

While there have not been any copyright laws that directly address the popularity of memes, Ondersma said, there is the Digital Millennium Copyright Act, which can be used to take down a website that is hosting materials that have been deemed as infringing on copyrights.

Although memes have become a new way of communicating and socializing on social media, there can be a hefty price to pay if used incorrectly, he warned.

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