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No laughing matter! Why using someone’s meme may get you into trouble

An internet meme, or simply, a meme, can be defined as a humorous image, video, piece of text, etc., that is copied (often with slight variations) and spread rapidly through social media, or other media forums.

In more recent times, memes have evolved from simple images and texts to more elaborate things, such as challenges and viral trends. It is simply impossible to go anywhere nowadays without seeing some form of meme.

Kenyans have displayed their unmatched and immense creativity and skills (not to forget speed) in coming up with hilarious memes based on trending topics in the society, ranging from celebrities, politics to religion. The basic concept behind memes is that they are to be shared, and with sharing comes the concept of ‘going viral’, and with virality comes more likes, followers and subscribers, which can in turn generate revenue.

Memes are a form of creative expression, an expression of an idea. Under copyright law, once an idea is expressed into a tangible form, it is automatically protected by copyright. But does the Law really protect memes under copyright?

FLAWED FAME

Consider Scenario one: You as a content creator, aka ‘meme-lord’, spends hours working on a meme and someone later steals it after you upload it, deletes your watermark, and passes it off as their own on their page.

When you finally notice this, you send them a ‘DM’ or tweet, asking them to kindly take it down and refrain from stealing your content, only for them to respond, “Najua inauma, but, itabidi umezoea.”

Consider scenario two: You take an awkward selfie and it later finds its way to social media and goes viral. Your face is turned into the latest sensational meme in Kenya.

Despite the 15 minutes of fame and maybe 14 minutes of embarrassment the meme has brought you, you still feel you deserve much more than that, especially since that well-known telecommunications company reposted your image on their page and attached one of the products they sell in the same post.

Intellectual property jurisprudence has yet to entirely address these issues, which would seem non-trivial if not for the fact that such content nowadays can generate substantial revenue for content creators and corporates both directly and indirectly. However, some existing legal doctrines exist that may be applicable and are worth knowing to creative content creators.

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A meme is a derivative work, meaning it’s based or imitates an original work. Usually, a copyright owner is the only party with the legal right to create a derivative work.

Sometimes the meme creator is also the image creator, but often, when involving pictures or images of celebrities or individuals, the image’s copyright is owned by someone else and under copyright law, only they have the exclusive rights of reproduction, modification, distribution, performance, and display. The viral spread of a meme infringes on these protections as the original image is modified and then displayed, distributed and reproduced when posted and reposted.

FAIR USE

However, within copyright law exists the doctrine of fair use, which allows for use of a copyrighted work in the creation of new work without permission, if the use fits within certain acceptable boundaries. Under copyright law, fair use will be satisfied if a content creator or any person uses the image for purposes of commentary, parody, satire, criticism, reporting or teaching. Considering the nature of memes, they would fall under fair use since most of them can be considered parodies, satire or even commentaries. This essentially protects meme creators from infringing on others’ copyrights.

Equally, when a meme lord overlays text on a photo that belongs to someone else or alters it in some way, they do not infringe on the copyright of the photo owner. This is because they have transformed the original nature of the initial photo, and this qualifies as fair use.

But someone who takes an already-created meme and posts it without any transformation is simply reposting — there is no commentary or criticism or parody.

Simple reposting adds no additional expression to an original work. Thus, for someone to avoid infringing on another’s photo when creating a meme, they must make a substantial transformation to the original photo. Adding a filter on an already existing photo and then imposing your watermark and claiming it as your own is not fair use and amounts to copyright infringement.

Additionally, when memes or the subjects of a meme are used for commercial purposes without permission, the meme creator may sue, as the effect of the commercial use on the market value of the original meme usually prevents a finding of fair use.

In this instance, if a corporate entity or an individual monetises your meme without your permission, you as the meme creator or owner of the photo can take legal action against them.

Memes make the world a better place. If you create or post one, remember to pay attention to the source of the image. Your best bet is to start with an image or clip that is already labelled for reuse or is in the public domain, meaning out of copyright protection altogether. When you see a meme going around, give a thought to the subject of that meme image, whose life may forever be changed.

Allan Tuli/The Star

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