What’s a Meme for?
Most of you are probably using memes or images to illustrate certain parts of your life or to bring more life to some of your content. Doing a Google Image search, right clicking, saving to your computer, and then reuploading with your post is second nature for most of us.
However is this something that you are legally allowed to do? The DMCA or the Digital Millennium Copyright Act says that a site is not liable if a user uploads copywritten material. However, the site must remove the infringing content when asked. The DMCA typically shields the users too since most of the time there are not enough dollars for a lawyer to go after if an “average Joe” is uploading copyrighted content. Despite this, there are many other ways that you are not protected by the DMCA.
In the world of memes, who owns what? We’ve seen some sky high prices for NFTs featuring memes like Nyan Cat and Success Kid. Furthermore, the definition of a meme is an image that is copied and spread widely throughout the internet primarily via social media. If a copyright holder limits this, then technically they are also cutting short the potential for their meme and possibly the chance to cash in on those NFT prices (if they ever come back).
Most copyright holders are okay with their memes being used to describe an everyday happening like “Success Kid” or “Distracted Boyfriend” does. However when these images are used in commercial contexts, that’s when things get messy. Many court cases have been brought against commercial entities using these likenesses without permission. The payouts rarely exceed $150,000 but it is better to avoid these situations than spend time, effort, and resources defending a lawsuit.
Protect yourself from … a meme?
So what to do as an influencer? We aren’t legal experts and the law is constantly changing but here’s our quick take on whether or not you can use memes in your posts.
Ask yourself if you are selling anything. If you are selling products, most likely the answer is no. This is more relevant if you are selling your own products versus selling someone else’s products. Remember, the meme cannot act as an endorsement of your products. To err on being conservative is the safe answer. If you must use a meme, maybe there’s a way you can replicate it in an “homage” type of way.
If you are like most influencers, making a few bucks with a monthly sponsored post, advertising revenue from the social media platforms, or the occasional affiliate revenue, you are most likely in the clear. Most influencers are selling content and do not make enough money to make it worthwhile for the meme copyright lawyers to come after you. Further the previously mentioned DMCA should protect you; you’ll just have broken links on your post.
Other options than memes
If you need an image what do you do? We mentioned how stock photography sometimes cheapens your piece. However, that was then and this is now; the proliferation of free stock images has exploded with sites like Pexels.com, Unsplash and Pixabay offering free royalty free images. What you can also do if you are using a tool like Google Images is click on the “tools” button, select “usage rights”, and then click on “commercial and other licenses.”
Again, we aren’t lawyers, but we would advise you on the side of being conservative and using the deluge of content out there to your advantage. Someone out there would be happy with your sharing their instagram handle with your audience. That sure beats a few months of litigation and a few thousand dollar fine. You can also try AI image generation although the jury is still out there.
How are you getting the images or memes that you use? Are you shooting everything originally or are you using one of the aforementioned royalty free stock image sites? Have you been approached by any copyright holders for infringement? Drop us a note if you have anything to add, we would love to hear!