Should IP law be applied to memes?
Recently, UK Assemble Now, a political meme social media account, posted a photoshopped Avengers poster featuring the faces of several politicians. Although it received hundreds of retweets and likes, it does have some potential intellectual property issues attached to it.
However, UK Assemble Now is not the only social media account to photoshop film posters or use other copyright material in its posts. So, how does IP law apply to memes?
What IP issues are raised?
In the UK, if a substantial part of an original copyright work has been reproduced in a meme, the copyright owner may allege infringement. For example, if a person’s face is lifted from a photograph and added to a film poster image and so retaining the background, layout and bodies of characters, then this would arguably class as copyright infringement of both the original photographs and the poster.
Individual creators of a copyright work can also object to derogatory treatment of the work, whether that be in the form of deletions, additions or alterations to the original work.
Passing off could also be an issue, as there is a possibility that the public will believe that the creator of the meme has an association with the owner of the content. Although, with the parodic nature of many meme pages, this may be unlikely.
What further problems does social media raise?
Once a post picks up pace on social media, a snowball effect can occur. If the image or video has been copied and shared from other accounts, the original user no longer has control over where and how the meme is used. Even if the user deletes the post, the infringing content still exists.
Why do many people avoid any issues after posting infringing material?
Many people photoshop copyright images to create memes and do so without any action being taken against them. This could be because they aren’t creating these images for monetary gain, and the rightsholder decides that it’s not cost-effective to take infringement action. In fact, sometimes fan artwork can bring a new audience to a franchise, which ultimately leads to an increase in revenue.
Should fair use apply?
Fair use can be a defence to copyright infringement when the purpose of the meme is parody, caricature or pastiche – as is the case with many memes. In these cases, the courts will try to balance the copyright owner’s rights and the creator’s interests.
For those who wish to create social media content using copyright material, using as little of the original work as possible is the wisest choice to avoid any infringement issues.
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