It’s hard to imagine the internet without memes. The concept of a meme is brilliantly simple – an image and a short, catchy text. Creating a meme requires almost no special skills – especially since there are even generators available.
The author of the text is Arkadiusz Szczudło, lawyer, partner at Creativa Legal.
Most memes are created for the purpose of entertainment in a broad sense. But that’s not all – memes can also be a great addition to news articles or marketing communications. It is therefore important to know whether and how to create and distribute them without risking legal liability.
Memes and copyright
The basis of every meme is a graphic (photo). As a rule, these are works within the meaning of the Act on copyright and related rights (copyright), therefore their use and modifications are regulated by law.
First of all, in accordance with the provisions of the copyright law, the development of another’s work, especially its adaptation or adaptation, is subject to copyright without prejudice to the right to the original work, and dealing with such a study requires the consent of the creator of the original work (unless the copyright to the original work ). This is called a derivative work. Importantly, copies of such derivative work should credit the creator and title of the original work.
Second, a meme is usually based on broadly understood satire or parody. The provisions of the copyright law state that works can be used for the purposes of parody, pastiche or caricature to the extent justified by the rights of these genres. It belongs to the so-called fair use, i.e. the possibility of using foreign licensed works. However, as with a derivative work, the law requires that the author and source of the work on which the parody is based be credited.
We all know the answer to the question of whether the above-mentioned obligations related to labeling the author of the original work are implemented in practice.
However, for the sake of order, I will add that in accordance with the provisions of the copyright law, fair use must not violate “the normal use of the work or the legitimate interests of the creator”. What does this mean in practice? That if you create a meme based on someone else’s artwork for commercial purposes and then the meme goes viral – there is a risk that the creator of that artwork will want to get some sort of “compensation” for making the meme based on their work.
Memes and image protection
The heroes of memes are not only cats, dogs and butt-handlers (who probably agreed to every possible use of their image), but often also public figures or completely “ordinary people”.
Under what conditions can their image be used?
An image is a characteristic set of physical characteristics of a person that allows him to be identified and distinguished from other people. Dissemination of an image usually requires the consent of the person depicted on it. There are three exceptions to this rule. Consent is not required to distribute the image:
- a well-known person, if the image was taken in connection with the performance of public functions, especially political, social and professional ones;
- a person who is only a detail of a whole, such as an assembly, a landscape, a public event;
- the person who was paid to pose (and in that case that wouldn’t mean being paid to pose for the photo, but the meme itself).
Application? Memes of politicians photographed at state ceremonies or speeches in parliament are a completely different story (and legal qualification) than a meme of a work colleague having fun eating a sandwich. As long as the meme itself isn’t malicious or defamatory, you can basically sleep well on the former. Not only can you pay less with one friend to post the other, but you can also pay compensation.
Of course, there are controversial memes that denigrate politicians, but this is a topic that I am thinking about a too long essay 🙂
Memes and other personal merchandise
Speaking of compensation, it’s worth noting that image isn’t everything. Personal goods (protected by law) include, among other things, health, surname, good name (so-called personal brand). All these values can also be damaged by spreading the meme. The line between satire or caricature and slander may turn out to be thinner than you think.
And here I might surprise you – lawsuits for memes vs. personality rights have already occurred in Poland.
The Warsaw-Prague District Court has ruled that publishing someone else’s photo with a fake signature, even on a satirical website, is a form of defamation. The victim was the president of a social organization for the disabled, who posted a photo of himself from a visit to the Presidential Palace on his private Facebook profile. Then another person posted this photo on demotywatory.pl with the caption: “Lanserstwo. The new fashion of the 21st century, the pigs are still hungry and the bed is narrow”. Result: Fine and obligation to publish an apology.
Sławomir Cenckiewicz (for one of several memes with Sławomir Nitras released in 2018) and the author of the meme, which is a remake of the election banner, the mayor of Łap, also “earned” the sentence “for the meme” under the provisions for the protection of personality rights. Instead of the slogan “Heart for paws”, the slogan “I only help my own” appeared, and behind the photo of the candidate, a photo of a local priest and a graphic depicting a hand with a fan of banknotes.
Sharing someone else’s memes
Finally, one more practical thing.
Many people (and even businesses) still believe that if someone has posted something on the Internet (and it is available to everyone), it has become a “public good”. But copyright law doesn’t work that way, and it’s worth remembering.
So if you find a meme and want to use it for commercial purposes (or for a purpose other than fair use under copyright law), make sure the creator is okay with it. If it is any web developer you can ask him.
On the other hand, by taking a meme from someone’s fanpage and using it in, say, your own advertising campaign, you run the risk of encountering claims from both the creator of the meme itself and the creator of the graphics used to create it. or the person whose image is on the graphic.
Memes are a great communication tool. They can add beauty to a group chat on Messenger, a mug ordered for a friend’s birthday, and even go viral in a marketing campaign. The creation and distribution of memes is legal, but where you intend to use memes for commercial purposes, pay special attention to the origin of the graphics used and to be able to clearly identify their source. And – just like outside the Internet – it’s worth thinking twice whether the password is definitely still funny and not demeaning or slanderous.