Memes are a popular and often effective way of communicating an idea or message through online media channels. Memes have been used to promote everything from political candidates to private sector products and services. Memes are particularly useful in social media platforms such as Facebook and Instagram because, when done right, they can encapsulate complex ideas into one easily recognized, and most importantly, easily shareable image. Memes can make a message go viral. Various online and mobile tools have sprung up to make the task of creating a meme easier. Many blog/website operators use these meme generation tools under the perception (delusion?) that using these tools give the user the legal right to use the generated meme. But do they actually have that right? Sadly, in many cases no.

It should surprise no one that copyright subsists in the image which the meme is based upon, and without appropriate licenses, simply copying that meme (and therefore the underlying copyrighted image) may constitute copyright infringement. Let's consider the example of the "Socially Awkward Penguin" related memes. These are a series of memes based upon an image of a penguin awkwardly walking across a white background. The image of the penguin was originally photographed by George Mobley for National Geographic and has been copied to thousands of different memes across the internet, usually to communicate a socially awkward situation. GetDigital.de posted a meme using this image which attracted the attention of Getty Images, the alleged owner of the copyright in the original photograph. Getty Images successfully enforced its copyright against GetDigital.de by compelling them to take down the meme and pay a significant license fee for their prior use of the image on their site.

The GetDigital.de case attracted considerable attention since the socially awkward penguin was used in literally thousands of memes and Getty Images' actions appeared to be a high handed attempt to force burdensome financial settlements out of smaller websites. Indeed, many popular memes are quite likely violations of copyright, particularly those involving images taken from movies or popular TV shows. One such image from which numerous memes have been spun include a picture of Gene Wilder portraying Willy Wonka from the movie Willy Wonka and the Chocolate Factory. Without doubt, these memes are based on copyrighted images, and their creation and distribution would constitute acts of copyright infringement if not for the fact that, in some cases at least, their use would be protected by the fair dealing provisions in the US and Canadian Copyright Acts. For example, under the "fair dealing" provision of the Canadian Copyright Act (section 29), it is not an infringement of copyright to copy a work for the purposes of research, private study, education, parody or satire. Copying is also permissible in the case of "criticism or review" and "news reporting" provided the source and author of the work are credited (sections 29.1 and 29.2 respectively).

It is doubtful that many memes are used for the purposes of research or private study as those uses seem incongruous with posting memes on web pages or blogs. Parody, satire and education seem a reasonable interpretation upon which a defense to copyright infringement can be based in most cases of how memes are generally used. However, a fundamental provision of these exceptions to copyright infringement requires that the use must be "fair". Unfortunately, what constitutes fairness is a matter of factual evidence and will depend on many factors such as the "character of the dealing", the "amount of the dealing", the "alternatives to the dealing", the "nature" of the work being copied and the "effect" of the dealing on the work. Hence, a satirical meme based on a single image from a movie which appears on a single web page may be fair dealing provided the meme does not disparage the original work from which the image was taken. Under this scenario, many of the "Willy Wonka" based memes probably fall under the “fair use” provision of the copyright act, particularly if they are taken down after an interval of time. Commercial use of memes are, in my opinion, another thing entirely. It is at least arguable that copying an image from a movie for use in a meme used to promote a commercial enterprise falls outside the notion of fair dealing. In such cases, the commercial enterprise is “free riding” on the fame of the underlying image. Furthermore, commercial enterprises, having additional resources, have non-infringing alternatives to copying such as licensing the image from the copyright holder.

So why didn't GetDigital.de use the defense of "fair dealing" in its dispute with Getty Images? Because the website was based in Germany which did not have fair dealing provisions in its copyright act at the time. Also, it should be considered that Getty Images has a reputation for aggressively enforcing its rights even against small website operators, so reliance on the fair dealing provisions of the relevant copyright acts (Canada, the United States, the UK, etc.) can be a cold comfort. So how can one ensure not to inadvertently infringe copyright when creating and posting a meme? As mentioned before, a "fair use" of the meme may be acceptable to all but the most aggressive of copyright enforcers. Another approach is to obtain a license to use the underlying image from the copyright owner. Getty Images (and others) offer their images for licensing to users for commercial and non-commercial use. Careful attention must be paid when reviewing the terms and conditions of the license, since some image retailers on the web specifically limit how their licensed images can be used. Modifying the image to make a meme may fall outside the terms of the license.

The safest approach is, of course, to use a base image which is free from copyright. Pursuant to the copyright acts of nearly all nations, copyright subsists for the life of the author plus and additional 50 to 70 years depending on jurisdiction. Therefore, original images which are quite old are in the public domain. Alternatively, various organizations exist to provide "royalty free" images which can be used for generating memes provided the terms of the license are adhered to. Wikimedia Commons (commons.wikimedia.org) is one such source.