Don't Sue Meme, It's a Parody

DON’T SUE MEME, IT’S A PARODY

LEA SILVERMAN*

Abstract: Memes have become one of the most prolific posts on social media websites. Memes exploit familiar templates of existing images overlaid with text, typically to make a point or a joke. There have been very few court cases and almost no rulings on the issue of memes and copyright infringement. By applying a fair use analysis and the Supreme Court’s 1994 decision in Campbell v. Rose-Acuff Music, Inc, this Essay argues that meme creators can successfully assert the parody defense to copyright infringement.

INTRODUCTION

Memes have taken over social media as a popular method of communication and social commentary.1 For example, a Facebook group dedicated to memes specifically for law students currently has more than 73,000 members.2 In the group, each meme describes the unique experience of being a law student, refer- encing, for example, specific cases or bar exam preparation companies.3 Like the law student memes, other relatable memes can make people feel less alone when confronted with daily tasks or problems.4 Memes can portray both lighthearted and serious subjects in a humorous way.5 For example, a meme might describe a person’s relationship with an alarm clock or a person’s depression, associated with academic failings.6 Notably, SpongeBob SquarePants characters, popular for their relatability, frequently show up as the base photo in memes.7 ______Copyright © Boston College Intellectual Property & Technology Forum, Lea Silverman * J.D. Candidate, Boston College Law School (expected 2021) B.A., Strategic Communication, Elon University (2018). 1 Jed Martinez Roca, Why Memes Are the Most Efficient and Safest Form of Communication for Millennials, ODYSSEY (May 2, 2017), https://www.theodysseyonline.com/why-memes-are-the- most-efficient-form-of-communication-for-millennials. 2 Law School Memes for Edgy T14s, FACEBOOK (Dec. 6, 2017), https://www.facebook.com/groups/lsm4et14s. 3 See id. (hosting a page for memes related to and posted by law students). 4 GinaMaria Guarino, 15 Funny Depression Memes People with Depression Can Relate To, HEALTHYPLACE (June 28, 2018), https://www.healthyplace.com/depression/effects/15-funny-depression-memes-people-with-depression-can-relate-to. 5 See Heidi E. Huntington, The Affect and Effect of Internet Memes: Assessing Perceptions and Influence of Online User-Generated Political Discourse as Media (Summer 2017) (unpublished Ph.D dissertation, Colorado State University) (describing memes as simultaneously achieving a serious and funny tone). 6 Id.; see Nathan Davidson, The Funniest Alarm Clock Memes, RANKER (Dec. 30, 2019), https://www.ranker.com/list/funny-alarm-clock-memes/nathandavidson (listing funny alarm clock memes that people can relate to). 7 L.A. Johnson, ‘SpongeBob SquarePants’ Is Soaking Up Viewers, PITTSBURGH POST-GAZETTE (July 2, 2002), http://old.post-gazette.com/ae/20020702spongebob0702p3.asp.

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Due to their derivative nature, memes may present copyright issues.8 Typi- cally, when the copyright to an image is owned by one entity and is used by another without the creator’s permission, the copyright owner can sue the user for copyright infringement.9 Nevertheless, those who use copyrighted works that they do not own within a larger piece of original work have defenses that may protect them from liability in a copyright infringement lawsuit.10 Part I of this Essay considers the modern definition of memes as it relates to the fair use analysis under § 107 of the Copyright Act.11 Next, Part II discusses transformative works and applies the elements of fair use established by the Supreme Court in 1994 in Campbell v. Rose- Acuff Music, Inc.12 Finally, Part III argues that a fair use defense applies to memes on social media websites.13

I. MEMES AND THE FAIR USE DEFENSE

Because memes use existing images, meme-makers may be sued for copyright infringement.14 Section A provides a historical background on memes.15 Sec- tion B discusses the fair use doctrine and how it provides a complete defense to copyright infringement.16 Section C explores the Supreme Court’s 1994 decision in Campbell v. Rose-Acuff Music, Inc. and how the Supreme Court views transformation within a context of parody.17

A. What Is a Meme?

The concept of the meme18 pre-dates the modern Internet.19 The origin of the meme has been traced back to 1976 in Richard Dawkins’ The Selfish Gene.20 Dawkins explained memes as pieces of information that replicate and change in the same way that a gene reproduces and develops.21 Today, a meme is an image; it is

______8 See generally Thomas F. Cotter, Memes and Copyright, 80 TUL. L. REV., 331, 334 (2005) (describing memes and the various copyright issues they present). 9 17 U.S.C. § 501(a) (2018). 10 17 U.S.C. § 107 (2018). 11 Id.; see infra notes 18–57 and accompanying text. 12 See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) (holding that the transformative nature of a work can be weighed more heavily than other elements of the fair use defense); infra notes 58–100 and accompanying text. 13 17 U.S.C. § 107; see infra notes 101–119 and accompanying text. 14 See Cotter, supra note 8 (discussing memes, copyright issues, and fair use). 15 See infra notes 18–32 and accompanying text. 16 See infra notes 33–45 and accompanying text. 17 See infra notes 47–57 and accompanying text. 18 A meme is pronounced: mēm. Meme, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/meme (Jan. 29, 2020). 19 Linda K. Börzsei, Makes a Meme Instead: A Concise History of Internet Memes, UTRECHT UNI- VERSITY (Feb. 2013), https://works.bepress.com/linda_borzsei/2. 20 See id. (providing background on the history of memes stemming from a scientific idea about the way that humans communicate). 21 See Cotter, supra note 8 at 334 (evaluating Dawkins’ book and how Dawkins’ idea applies to modern memes).

2020] Don’t Sue Meme, It’s a Parody 3 based on a template that uses superimposed text over an image, with either the picture or text changing as different authors adapt it, while retaining a general theme.22 Authors of these Internet memes add to a joke by posting derivative memes that gain influence online and portray a part of society.23 Popular meme formats and templates are available online for adaptors to attach original text.24 A popular template is the “Distracted Boyfriend” meme.25 Distracted Boyfriend shows a male walking with his girlfriend, but instead of look- ing at his girlfriend, he gazes over his shoulder to look at another woman walking in the opposite direction, while his girlfriend glares at him in disgust.26 This meme kickstarted the trend of “object labeling” memes, where a meme creator puts text over—i.e., labels—different characters depicted in a picture.27 The Distracted Boy- friend meme is just one example of what a meme looks like from thousands of different formats.28 Put differently, a person can re-assign the different characters in the Distracted Boyfriend template: the distracted boyfriend, the girlfriend, and the other woman.29 Typically, the person altering the meme places themselves in the shoes of the distracted boyfriend.30 The girlfriend figure is substituted for something representing an obligation, like homework.31 The other woman usually rep- resents a temptation or distraction, like watching television.32

B. The Fair Use Doctrine

Copyright law affords exclusive rights to authors and artists to protect their work and promote creation.33 The Copyright Act protects the original works that authors fix in a tangible medium, such as books, plays, and “pictorial, graphic, and sculptural works.”34 Because a copyright gives the copyright owner exclusive rights, infringement typically results when someone uses another’s creation without the owner’s permission.35 Section 107 of the Copyright Act, however, codifies the ______22 Ronak Patel, First World Problems: A Fair Use Analysis of Internet Memes, 20 UCLA ENT. L. REV. 235, 237 (2013). 23 See Patrick Davison, The Language of Internet Memes, in THE SOCIAL MEDIA READER 120, 122 (Michael Mandiberg ed., 2012) (explaining what a meme is and how it gains influence). 24 Blank Meme Templates, IMGFLIP, https://imgflip.com/memetemplates (Dec. 25, 2019). 25 Distracted Boyfriend, IMGFLIP, https://imgflip.com/meme/Distracted-Boyfriend (Dec. 25, 2019). 26 Id. This image was taken by Antonio Guillem and posted on the iStock website where stock images are available for sale. Distracted Boyfriend, KNOW YOUR MEME (Aug. 22, 2017), https://knowyourmeme.com/memes/distracted-boyfriend; see Jason Kim, Blockchain Copyright: Vain Hope for Photographers? B.C. INTELL. PROP. & TECH F. 1, 4 (2019) (detailing how someone might infringe a photographer’s copyright). 27 Heather Schwedel, The Distracted Boyfriend Was onto Something, SLATE (Mar. 22, 2017), https://slate.com/technology/2018/03/memes-are-object-labeled-now.html. 28 Id. 29 Id. 30 Distracted Boyfriend, supra note 25. 31 Id. 32 Id. 33 See Cotter, supra note 8 at 332 (discussing the purpose of creating copyright laws). 34 17 U.S.C. § 102 (2018). 35 See Maya Fe Holzhauer, Copyright and Social Media: What Does it Meme?, NORTHEASTERN U. L. REV. EXTRA LEGAL (May 13, 2018), http://nulawreview.org/extralegalrecent/copyright-and-social-media-what-does-it-meme (illustrating a copyright owner’s rights).

4 Boston College Intellectual Property & Technology Forum [BC IPTF fair use doctrine, an exception to this general rule.36 The fair use doctrine acts as a complete defense to copyright infringement.37 Several factors are considered when determining whether a defendant can successfully assert the fair use doctrine.38 The four main factors include the following: (1) the purpose of the use of the copyrighted work, including whether it is used for commercial or nonprofit reasons, (2) the copyrighted work’s nature, (3) the size of the portion that was taken from the copyrighted work and its relation to the new work, and (4) the effect that the in- fringed work has on the value of the original.39 This Essay focuses on the first factor: the purpose and character of use.40 This factor recognizes that it is important to consider the context in which a copyright is used.41 Reproduction that would otherwise be considered infringement is considered fair use when used for “criticism, comment, news reporting, teaching …, scholarship, or research.”42 Courts have found this factor to be an important consideration when examining the transformative nature of the work.43 Transfor- mation occurs when someone adds something new to the copyrighted work in a way that alters the original work’s meaning.44 The less transformative a work is, the more likely a court is to find infringement.45 Nevertheless, a court does not automatically find fair use when a copyrighted work is used for one of the afore- mentioned stated purposes.46

C. Transformation and Parody: Campbell v. Rose-Acuff Music, Inc.

One way to determine whether a work infringes a copyright is to look at the transformation of the work.47 In 1994, the Supreme Court held in Campbell v. Acuff-Rose Music, Inc. that a transformative work is one that adds something new or changes the message of the original work.48 In Campbell, William Dees and Roy Orbison’s song “Oh, Pretty Woman” was satirized by 2 Live Crew, a rap music group that performed the song “Pretty Woman.”49 The rap version added humorous

______36 17 U.S.C § 107 (2018). 37 See Jay Jr. Dratler, Distilling the Witches’ Brew of Fair Use in Copyright Law, 43 U. MIAMI L. REV. 233, 257 (1988) (discussing fair use as a full defense to copyright infringement). 38 17 U.S.C § 107. 39 Id. 40 Id. 41 Id. 42 Id. 43 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). 44 See id. (noting the elements of transformation). 45 See Warner Bros. Entertainment, Inc. v. RDR Books, 575 F. Supp. 2d 513, 542–44 (S.D.N.Y. 2008) (holding that although a Harry Potter encyclopedia was “slightly transformative” because its purpose was to collect material in a reference guide, it was not transformative enough to justify a fair use defense because it did not consistently alter the taken material). 46 See Dratler, supra note 37 (discussing how usage for an explicitly stated purpose in the copyright statute does not give the infringer an automatic defense). 47 See Campbell, 510 U.S. at 579 (discussing how the transformation of the original work can fulfill elements of the fair use defense). 48 Id. 49 Id. at 572.

2020] Don’t Sue Meme, It’s a Parody 5 lyrics to the original lyrics and altered the beat to fit a hip hop vibe.50 The Court accepted that parodies have transformative value, because they can provide social benefit, similar to less-humorous criticisms, by illuminating prior works in a way that creates a new work.51 The Court of Appeals for the Sixth Circuit held that 2 Live Crew’s commercial purpose disqualified the group from asserting the fair use defense.52 The Supreme Court rejected this argument, stating that commercial nature is just one factor that can be weighed against other factors, such as transformation.53 The Court held that parody should be judged on a case-by-case basis and courts must evaluate each of the factors in the statute.54 Transformation, as an element of the first factor of fair use—the nature and purpose of the use—has become a focal point in the fair use analysis.55 Works can be used “as a building block” if sufficiently altered to a level of transformation.56 As long as something new is added in a way that alters the message of the copyrighted work—i.e., that there has been sufficient transformation of the original work—a defendant may avoid copyright infringement.57

II. MEMES AND THE PARODY DEFENSE

Memes spread rapidly across the Internet on social media websites.58 There are two major players involved in the creation of a meme: the originator, who may have created the first meme or taken the original photograph, and the derivative author.59 Derivative authors are those who slightly change either the text or image from the original to create a new meme or trend.60 In the context of a parody, derivative authors use a portion of an original work to comment on the original.61 Because memes transform original works, with adaptors commenting on prior

______50 Id. 51 Id. at 579. 52 See Acuff-Rose Music, Inc. v. Campbell, 972 F.2d 1429, 1437 (1992) (holding that the creation of the song for commercial purposes weighs against the application of the fair use defense). 53 See Campbell, 510 U.S. at 594 (concluding that the fact that usage for commercial purposes does not automatically translate to unfair use). 54 Id. at 581. 55 R. Anthony Reese, Transformativeness and the Derivative Work Right, 31 COLUM. J.L. & ARTS 467, 468 (2008). 56 Rebecca Tushnet, User-Generated Discontent: Transformation in Practice, 31 COLUM. J.L. & ARTS 101, 110 (2008). 57 See Campbell, 510 U.S. at 579 (discussing how transformation weighs heavier than other factors in favor of fair use). 58 Limor Shifman, Memes in a Digital World: Reconciling with a Conceptual Troublemaker, 18 J. OF COMPUTER-MEDIATED COMMUNIC’N 362, 364 (Apr. 2013). 59 See Patel, supra note 22 at 250 (illustrating how memes originate with one author and can then be re-created by many other authors). 60 See id. (explaining how derivative authors build on the work of original authors or other derivative authors). 61 See Cotter, supra note 8 at 389 (defining a parody).

6 Boston College Intellectual Property & Technology Forum [BC IPTF memes, memes can likely be analyzed in a similar manner to parodies.62 For example, the Distracted Boyfriend meme is used to make fun of the way the boyfriend seems to prefer another girl to his girlfriend.63 Derivative authors then transformed the photograph to add commentary beyond a boy preferring another girl.64 This Part discusses different cases involving parodies and the fair use defense.65 These cases illustrate the different elements courts focus on when weighing the four fair use factors.66 The best way to avoid a copyright infringement lawsuit is to receive permission from the original artist.67 For parodists who plan to parody an entire song, it is best practice to get permission, whereas parodists using smaller pieces of an existing work might not feel such permission is necessary.68 Courts employ a multi- factor test to determine whether one can invoke the parody defense.69 The following cases illustrate different scenarios wherein pieces of work were considered parodies that could invoke the fair use defense.70 Although some parodies have a commercial nature, an element that can weigh against fair use, courts have more heavily weighed other elements, such as the purpose of the piece, in favor of fair use.71 In Fisher v. Dees, decided in 1986 by the Court of Appeals for the Ninth Circuit, a comedian, Dees, asked Fisher and Segal, jazz musicians, to parody a part of their song “When Sunny Gets Blue” for his comedy record album.72 Despite the fact that Fisher and Segal did not give Dees permission to create a derivative work, he used twenty-nine seconds of “When Sunny Gets Blue” in his song, “When Sonny Sniffs Glue.”73 When the Ninth Cir- cuit applied the first factor of the fair use test, the court found that even though the parody did have a commercial nature, its goals were not simply to make money,

______62 See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) (explaining that transformation can be a significant factor in classifying a work as a parody). 63 See Schwedel, supra note 27 (identifying the Distracted Boyfriend as a “romantically confused hero”). 64 Id. 65 See infra notes 64–100 and accompanying text. 66 See infra notes 67–100 and accompanying text. 67 See Jennifer E. Rothman, Best Intentions: Reconsidering Best Practices Statements in the Context of Fair Use and Copyright Law, 57 J. COPYRIGHT SOC’Y U.S.A. 371, 371 (2010) (stating that obtaining permission is a best practice when using someone else’s work). 68 See Greg Kanaan, Weird Al and Parody: Why It’s Better to Ask Permission Than Beg Forgiveness, THE LEGAL ARTIST (July 22, 2014), https://www.thelegalartist.com/blog/weird-al-parody-better- ask-permission-beg-forgiveness (describing Weird Al, a famous parodist who uses the entirety of songs for his parodies but ask for permission from the copyright owner because he knows that parodies are not exclusively entitled to the fair use defense). 69 See Campbell, 510 U.S. at 581 (stating that parodies must be judged on a case-by-case basis in light of copyright law). 70 See Elsmere Music, Inc. v. Nat’l Broad. Co., 623 F.2d 252, 253 (2d Cir. 1980) (holding that a Saturday Night Live sketch received fair use protection); Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 110 (2d Cir. 1998) (holding that a movie poster was transformative enough to receive fair use protection); Fisher v. Dees, 794 F.2d 432, 440 (9th Cir. 1986) (holding that a song on a comedy album is a parody entitled to the fair use defense, even though it had a commercial nature). 71 Fisher, 794 F.2d at 437. 72 Id. at 434. 73 Id.

2020] Don’t Sue Meme, It’s a Parody 7 but rather were more similar to an editorial.74 Dees prevailed, showing that even though he was blatantly denied permission to use the copyrighted song, he was not barred from asserting and succeeding on a fair use defense.75 To determine if the fair use defense is appropriate, courts analyze the work’s purpose and target of the humor.76 In the 1980 Court of Appeals for the Second Circuit case, Elsmere Music, Inc. v. National Broadcasting Co., Elsmere Music, Inc. asserted a copyright infringement claim against the popular television show “Saturday Night Live.”77 The show included a skit called “I Love Sodom” that parodied Elsmere’s song, “I Love New York.”78 The parody song was set as a public relations campaign in the biblical city of Sodom in an attempt to boost the city’s reputation.79 This is the same reason “I Love New York” was created.80 The court held that the song validly parodied the campaign jingle, properly targeting both the purpose of the song and the song itself.81 These elements were targeted properly because the listener would be able to identify the similarities in both the catchy vibe and the intent to alter tourists’ perception of the towns.82 The Second Circuit also noted that “copyright law should be hospitable to the humor of parody,” especially in solemn modern times.83 To receive the fair use defense, a work needs to be sufficiently transformed and comment on the original, however subtle that comment may be.84 In 1991, An- nie Leibovitz photographed a nude, pregnant Demi Moore, posing as the subject in Sandro Botticelli’s well-known painting Birth of Venus, for the cover of Vanity Fair magazine.85 In 1993, Leslie Nielsen’s smirking face was superimposed on a photograph of a different nude, pregnant woman, who was posing in a similar way.86 This derivative photograph was used to promote Nielsen’s newest comedy Naked Gun 33 1/3: The Final Insult.87 In 1998, in Leibovitz v. Paramount Pictures Corp., the Court of Appeals for the Second Circuit held that the movie poster, which added something new to the original, was sufficiently transformed.88 Additionally, the smirk on Nielsen’s face compared to Moore’s serious demeanor provided commentary on the “pretentiousness” of the original.89 ______74 Id. at 437. 75 Id. at 434. 76 Elsmere Music, 623 F.2d at 253. 77 Id. 78 Id. 79 Id. 80 Id. 81 See id. (holding that a parody needs to properly target the original work to receive protection); see also Elsmere Music, Inc. v. Nat’l Broad. Co., 482 F. Supp. 741, 746 (S.D.N.Y. 1980), aff’d 632 F.2d 252 (2d Cir. 1980) (discussing parodies receiving fair use protection because they properly target the original work). 82 See Elsmere Music, 482 F. Supp. at 746 (describing how a listener would perceive the parody when compared to the original work). 83 Elsmere Music, 623 F.2d at 253. 84 Leibovitz, 137 F.3d at 114. 85 Id. at 111. 86 Id. 87 Id. 88 Id. at 114. 89 Id.

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Even if an author labels their work as a parody, courts do not automatically recognize the fair use defense.90 The Ninth Circuit dealt with a parody case again in 1997 with a book titled The Cat NOT in the Hat! A Parody by Dr. Juice that discussed the O.J. Simpson trial in the style of a Dr. Seuss book.91 The court held that self-identifying as a parody does not automatically entitle an infringing work to the fair use defense.92 The Court also decided that The Cat NOT in the Hat! A Parody by Dr. Juice was nontransformative of the original, The Cat in the Hat, because even though the authors used Dr. Seuss’ style, they did not ridicule that style.93 Therefore, the infringing work was not a parody in line with the definition discussed in Campbell and not a fair use.94 The foregoing case discussions demonstrate that a parody is similar to an editorial comment on society and can be weighed in favor of fair use, even when the work is commercial in nature.95 To be eligible for the parody defense, a complete bar to copyright infringement, a parody needs to properly target the work itself, rather than just use popular elements of it to gain notoriety.96 The Second Cir- cuit recognizes that most parodies do not inflict much harm to the original copyright owner.97 Rather, the purpose of a parody is to make people laugh.98 The Second Circuit recognizes that this type of humor is a social benefit that should not be dis- couraged by holding parody creators liable for copyright infringement.99 Although transformation is a necessary element for parodies granted fair use, subtleties can be used to comment on the original piece, even just a smirk.100

III. MEMES ARE PARODIES ENTITLED TO THE FAIR USE DEFENSE

The fair use defense is applied to parodies on a case-by-case basis.101 Memes can be considered parody because they poke fun at the underlying image.102 They may also comment on the image or larger societal impact.103 Because memes

______90 Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1403 (9th Cir. 1997). 91 Id. at 1396. 92 See id. at 1403 (holding that the defendant’s characterization of his own work as a parody was unconvincing). 93 See id. at 1401 (holding that the work was not a parody because it did not properly target the original work). 94 See id. at 1400 (discussing the definition of parody and how the defendant’s work does not fit within it). See generally Campbell, 510 U.S. 569 (defining parodies). 95 Fisher, 794 F.2d at 437. 96 Elsmere Music, 623 F.2d at 253. 97 See Elsmere Music, 482 F. Supp. at 741 (holding that the parody did not affect the value of the original work). 98 See Elsmere Music, 623 F.2d at 253 (inferring that parodies are inherently humorous). 99 See id. (explaining that copyright law should welcome humor in dark modern times). 100 See Leibovitz, 137 F.3d at 114 (illustrating that a smirk is a sufficient comment on the pretentiousness of the original work). 101 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 581 (1994). 102 Anna Piata, When Metaphor Becomes a Joke: Metaphor Journeys from Political Ads to Internet Memes, 106 JOURNAL OF PRAGMATICS 39, 40 (Dec. 2016). 103 See id. (explaining how memes make social and political commentary in a humorous way).

2020] Don’t Sue Meme, It’s a Parody 9 are extremely transformative, they should be considered fair use.104 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.105 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.106 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.107 The poster in Leibovitz is similar to a meme because the humor is so visual.108 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.109 For example, assume Antonio Guillem, copyright owner of the stock photo, sued the Distracted Boyfriend meme maker for misappropriating the underlying meme image.110 The meme maker could likely assert a fair use defense, because the meme targets the capricious nature of the boyfriend and transforms the photo by overlaying text labeling the distraction.111 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.112 Similar to parodies, memes warrant the fair use defense.113 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.114 Nonetheless, most memes are extremely transformative and are used to make a humorous comment, similar to the movie poster in Leibovitz.115 Like in Elsmere Music, memes properly target an original work with a joke based on the photograph’s overall theme.116 The Distracted Boyfriend meme uses the underlying

______104 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). 105 See Fisher v. Dees, 794 F.2d 432, 437 (9th Cir. 1986) (noting that parodies should be viewed in a similar manner to editorials). 106 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-monetize/561578/. 107 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). 108 See id. at 115 (illustrating the humor of the movie poster). 109 See id. at 114 (showing that viewers can deduce what the piece of work is trying to achieve). 110 Brian Barrett, The ‘Distracted Boyfriend’ Meme’s Photographer Explains All, Wired (Aug. 28, 2017), https://www.wired.com/story/distracted-boyfriend-meme-photographer-interview/. 111 Elsmere Music, 623 F.2d at 253; Leibovitz, 137 F.3d at 114. 112 Leibovitz, 137 F.3d at 114. 113 Id. 114 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). 115 See Campbell, 510 U.S. at 599 (Kennedy, J. concurring) (holding that allowing any weak transformation to qualify as parody would weaken copyright protection); Leibovitz, 137 F.3d at 114. 116 Elsmere Music, 623 F.2d at 252.

10 Boston College Intellectual Property & Technology Forum [BC IPTF theme of a struggle between what one already has and what one would prefer.117 This is similar to the parodic song in Fisher, that used the underlying tone and theme of the original to poke fun at it for comedic, and not entirely commercial, value.118 Because of the parodic and transformative nature of memes, most memes and meme-makers may avoid copyright infringement allegations by applying the fair use defense.119

CONCLUSION

Meme-makers should be able to successfully employ the fair use defense to copyright infringement allegations when they use existing images in their work. Memes are created to make people laugh, offering a social benefit that the Copy- right Act promotes through the protection of the arts, including parody. In the past, courts have considered parodies to be transformative on a case-by-case basis, in a similar manner to editorials or social commentaries, and have allowed parodies find shelter in the fair use defense. Because of the similarities of traditional parodies and modern Internet memes, courts should likewise examine memes under a parody lens, thus affording meme-makers the opportunity to assert fair use as a defense to copyright infringement allegations on a case-by-case basis.

Recommended Citation: Lea Silverman, Don’t Sue Meme, It’s a Parody, B.C. INTELL. PROP. & TECH. F. (Feb. 7, 2020), http://bciptf.org/2020/02/dont-sue-meme.

______117 Distracted Boyfriend, supra note 25. 118 Fisher, 794 F.2d at 437. 119 Campbell, 510 U.S. at 594.