DON’T SUE MEME, IT’S A PARODY LEA SILVERMAN* Abstract: Memes have become one of the most prolific posts on social me- dia 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 in- fringement. 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 infringe- ment. INTRODUCTION Memes have taken over social media as a popular method of communica- tion 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 per- son’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.face- book.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-de- pression-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. 1 2 Boston College Intellectual Property & Technology Forum [BC IPTF 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 ele- ments 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 copy- right 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 transfor- mation 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) (de- scribing 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 transforma- tive 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-web- ster.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 pic- ture 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 some- thing 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-so- cial-media-what-does-it-meme (illustrating