2020] Don’t Sue Meme, It’s a Parody
are extremely transformative, they should be considered fair use.
This purpose
should weigh heavier against the potential commercial nature, such as in Fisher,
because most memes are more similar to editorials or social commentaries and are
not specifically produced to make money.
Even though a meme-maker could use
a meme in a commercial nature, such as by selling meme-themed merchandise, it
is unlikely meme-owners make memes for a commercial purpose, as memes fall in
and out of favor quickly on the Internet.
Memes, as in the work at issue in Leibovitz, use original work as a jumping
off point for greater humor and comment, even if accomplished with just a smirk.
The poster in Leibovitz is similar to a meme because the humor is so visual.
De-
spite the lack of cases addressing this issue, courts presented with a meme should
recognize that memes are entitled to the fair use defense because of the comments
they make.
For example, assume Antonio Guillem, copyright owner of the stock
photo, sued the Distracted Boyfriend meme maker for misappropriating the under-
lying meme image.
The meme maker could likely assert a fair use defense, be-
cause the meme targets the capricious nature of the boyfriend and transforms the
photo by overlaying text labeling the distraction.
Although the originator of the
stock photo might argue that labels do not comment on the photo itself, the meme
maker is using the photo to make fun of it.
Similar to parodies, memes warrant
the fair use defense.
This Essay does not purport to classify all memes as parody and all parodi-
cal memes as deserving of the fair use defense without analyzing them on a case-
by-case basis.
Nonetheless, most memes are extremely transformative and are
used to make a humorous comment, similar to the movie poster in Leibovitz.
Like
in Elsmere Music, memes properly target an original work with a joke based on the
photograph’s overall theme.
The Distracted Boyfriend meme uses the underlying
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See Campbell, 510 U.S. at 583 (explaining how the combination of reference and ridicule em-
ployed by parodists creates a form similar to the comment and criticism normally protected by fair
use).
See Fisher v. Dees, 794 F.2d 432, 437 (9th Cir. 1986) (noting that parodies should be viewed in
a similar manner to editorials).
Taylor Lorenz, Memes Are Becoming Harder to Monetize, THE ATLANTIC (May 31, 2018),
https://www.theatlantic.com/technology/archive/2018/05/memes-are-becoming-harder-to-mone-
tize/561578/.
See Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 114 (2d Cir. 1998) (holding that the
movie poster was a comment on the original, even though that was not the overt intention of the
creators).
See id. at 115 (illustrating the humor of the movie poster).
See id. at 114 (showing that viewers can deduce what the piece of work is trying to achieve).
Brian Barrett, The ‘Distracted Boyfriend’ Meme’s Photographer Explains All, Wired (Aug. 28,
2017), https://www.wired.com/story/distracted-boyfriend-meme-photographer-interview/.
Elsmere Music, 623 F.2d at 253; Leibovitz, 137 F.3d at 114.
Leibovitz, 137 F.3d at 114.
Id.
See Schwedel, supra note 28 (recognizing a new genre of memes); see also Campbell, 510 U.S.
569 at 581 (holding that parodies must be judged on a case-by-case basis).
See Campbell, 510 U.S. at 599 (Kennedy, J. concurring) (holding that allowing any weak trans-
formation to qualify as parody would weaken copyright protection); Leibovitz, 137 F.3d at 114.
Elsmere Music, 623 F.2d at 252.