Do memes breach copyright law?

By |2022-06-29T10:49:42+10:0024-3-22|

From the early days of ‘lol cats’ and ‘rickrolling’ to Bernie Sanders and his mittens, internet memes have become a fundamental part of our modern youth culture.

All across the world, memes are created, posted, downloaded, copied and then republished to different audiences. Even major companies have started using memes as a form of advertising and publicity to connect with a younger demographic.

To most internet users, memes are just a bit of light-hearted, harmless fun. Because of this, people rarely stop to think about the legal ramifications concerned with the creation and distribution of these memes.

The whole concept of “memes” is dependent upon imitation: copying a previously existing work and putting a spin on it with the purpose of creating humour. This is what makes it such a controversial area within the world of copyright law.

This is the first part of a two-part article (or, as I like to call it, “a two-particle”).


How does copyright work?

Copyright is a collection of exclusive rights designed to protect a creator’s skill and labour. An idea in and of itself is not protected by copyright, no matter how original it may be. For something to be protected by copyright, it must be materialised in some way. According to the Copyright Act 1968, these forms of materialisation are as follows:

  • Literary works
  • Dramatic works
  • Musical works
  • Artistic works
  • Sound recordings
  • Films
  • Broadcasts (television, sound or radio)
  • Published editions

In Australia, there are no formal requirements or steps to get copyright registered. From the moment that the original work is materialised, if it is original and if it is the product of a creator’s own intellectual effort and creativity, it is given automatic copyright protection. In most cases, this copyright is considered to last up to 70 years after the creator’s death.

What does it mean to breach copyright?

Copyright owners are given a certain set of exclusive rights that only they are allowed to exercise. This includes the rights to reproduce, publish, sell, communicate, perform or adapt the creation.

Copyright infringement happens when someone else exercises one of these exclusive rights without the consent of the copyright owner. The process of finding if infringement has occurred involves assessing the similarity between the old work and the new work and, where only a part of the original work has been copied, evaluating how ‘substantial’ that part actually is.

Copyright owners can license their rights to third parties in exchange for royalties, fees or other consideration if they so choose.

The copyright owner can also assign their rights to a third party, who would become the new owner. In fact, in most employment relationships, employees automatically assign away their copyright to their employer. This is often confirmed in the employment agreement, but this isn’t always the case.

Can memes be a breach of copyright?

There are many different types of internet memes. The most common are image-based memes, made up of a background image and a text caption, usually paired for humorous effect. Therefore, it is possible for copyright to subsist in two different things: the image itself (artistic work) and the text (literary work).

Source: Dank Law Memes, but the image is from The Simpsons episode, Treehouse of Horror VII

Another common type of meme is a video-based meme. This can consist of many copyrightable pieces, including the video recording itself, the storyline of the video (dramatic work), the music of the video, the script of the video (literary work), and the sound recording of the video.

This means that if you make a copy of somebody else’s photo from Google Images or a frame from your favourite episode of The Simpsons and use it in your meme, you are effectively making a reproduction and adaption of somebody else’s work. The same goes for using a quote from somebody else and using it as a caption, or for using a video or sound clip from YouTube: you are breaching the copyright owner’s rights without their consent.

One of the requirements for copyright protection is originality. Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd [2010] FCA 984, which references the earlier case of IceTV Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14, states as follows:

For copyright to subsist in a work, one or more authors must have expended sufficient effort of a literary nature directed at the form of expression of the work … The form of expression of the work must be the result of particular mental effort or exertion by the author/s and cannot be essentially dictated by the nature of the information.

It is highly likely that an image, video or sound recording would be considered the result of “particular mental effort or exertion”. However, it is arguable whether the same would go for a meme caption. If the words used are so generic that they did not require mental effort or exertion, then it will likely not be protected under copyright.

In paragraph 44 of Fairfax, it was held that a newspaper headline was “generally, too trivial to be a literary work, much as a logo was held to be too trivial to be an artistic work … even if skill and labour has been expended on creation”. This same rationale could be applied to meme captions, if the caption is small and insignificant enough.

In summary, with all of these things considered, yes: memes can in fact breach somebody else’s copyright.

Find out more about copyright defences related to memes in the second part of my “two-particle” – coming soon.

Source: Dank Law Memes, but the original image frame is from The Wolf of Wall Street

Think Commercial. Think Nicholsons.

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