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Federal Court Affirms: Memes are not a Copyright-Free Zone

We’ve all become accustomed to the never-ending parade of iconic images that get picked up as viral “memes.” From Grumpy Cat to Distracted Boyfriend and many more, people seize on images that starkly convey basic emotions and copy them, adding their own context, often to humorous ends. But somewhere there is a photographer who took those photos – what about their copyright rights?

Last week the 8th Circuit Court of Appeals issued its decision in Griner v. King, a copyright infringement suit arising from unauthorized use of a photo that had achieved “meme” status. Laney Griner is the mother of Sam Griner, the subject of the photo. During a family trip to the beach, Laney took a photo of Sam that would launch him to internet fame.

Ms. Griner’s photo of Sam was reproduced countless times on social media, often just for fun. She was able to secure licensing fees from several major corporations to use the photo in advertisements.. Seizing on the popularity of the meme, then-Congressman Steve King’s campaign used the photo in a fundraising advertisement. Griner demanded the campaign stop the use and compensate her. King refused. and she filed a copyright infringement lawsuit in district court in Iowa

There was no doubt that the entirety of the copyrighted photo was used without a license. So, the case turned on whether the King campaign could justify its use as fair use. There was little need for the court to discuss the second and third factors of the fair use test: the photograph is a creative work and the campaign used the entire image. The fourth factor – harm to the market or potential market for the work – seems to us to favor the copyright owner. After all, Griner had an ongoing licensing business for the work. But in this instance, the court wrote that the plaintiff’s licensing revenue had declined and that it could not, therefore, ascertain the actual market impact. Thus, it held the fourth factor favored neither party.

So, the outcome of the case turned on the court’s analysis of the first fair use factor: the purpose of the use. Commercial uses are disfavored, and nonprofit uses are favored, especially where the use is transformative. Transformative use has been the subject of numerous court cases, including two relatively recent Supreme Court decisions. To be transformative, the new use must comment on the original work and/or use it with a different character or purpose.

In Griner’s case, the court found there was no comment or new purpose; the campaign used the creative expression in the photograph for its popularity. The campaign tried to argue that it was doing nothing different than millions of others who reproduced the meme, but the court saw through that argument, noting that most of those uses are noncommercial while the campaign was trying to raise money with the photo. As a result, the court affirmed the lower court’s judgement of infringement.

Because Griner had registered her photo of Sam with the U.S. Copyright Office prior to the King campaign’s infringing use, she was able to elect statutory damages and request that the defendants pay her attorneys’ fees. As it turns out, the jury awarded only the minimum statutory damages and denied her request for payment of attorneys’ fees, apparently because the campaign convinced them that the infringement was genuinely an innocent error. This doesn’t seem quite right to us, but that’s the job of the jury.

Above all, this decision is an important re-affirmation of copyright rights online and we’re glad the court got it right. While the low damage award in this case is because the jury was satisfied the use was “innocent,” in ordinary infringement cases statutory damages are up to $30,000 per work infringed. In instances of “willful” infringement, the cap goes all the way to $150,000 per work.

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Registration: One Work, One Author, Lots of Rules

The Single Application Form

The least expensive registration avenue offered by the Copyright Office is the Single Application form. For $45 ($20less than the Standard Application), you can submit your registration. However, the Copyright Office views this as a special discount and limits the use of Single Application.

As the name suggests, you may only submit one work and that one work must be by one author who is also the sole owner of the copyright in the work. So, for example, you sat down and wrote a short story entirely on your own and not based on anyone else’s work. Or you made a graphic design that is 100% your work. Unpublished works can be registered in groups of up to ten, but the Single Application may be used for published or unpublished works. But be careful! The Copyright Office is strict about its rules and this form has a number of restrictions. For instance:

  • If you had a joint author or the  work was made for hire, you may not use this form.
  • If you are the sole author but sold or gave away some or all the copyright ownership, you may not use this form.
  • If the work incorporates someone else’s prior work or is adapted from another author’s work, such as a screenplay based on someone else’s novel, you may not use this form because some aspects of the work are not your authorship. In fact, the Limit of Claim restrictions with this form are so potentially confusing, that we recommend using the Standard Application in these circumstances.
  • Audiovisual works can rarely be registered using the Single Application because they are often works for hire but almost always involve creative contributions from more than one author. The only way you can likely use this form for an A/V work is to register a selfie video—no other actors or voices, no one else’s music or sets, and so on.
  • Likewise with music, if you record a performance of someone else’s composition, you may not use the Single Application because you must Limit the Claim to indicate that the composition belongs to another author/copyright owner

One Work Means One Work

Be sure the deposit copy you send in contains only the ONE WORK being registered. If the deposit contains extra material, even for promotional purposes, the Office may reject the application on the basis that you have submitted more than a single work. For instance…

If you have a group of short stories or poems that you consider a single book, the Copyright Office will not register that through the Single Application. Depending on the circumstances, these could be registered as a group of unpublished works with a group application, or through the Standard Application as either a single unit of publication or a collective work. Those all involve other requirements, but the point here is even if you consider it a single book, the Copyright Office won’t let you use the Single Application.

If you include illustrations or photos, or even long quotations, you shouldn’t use the Single Application. For instance, if the Copyright Office decides a quote is long enough to be considered someone else’s authorship, it may refuse registration and tell you to file again using the Standard Application.

The Single Application is a better deal on the fee if you qualify. Just be sure that you really do qualify. Remember the fees are non-refundable and the Copyright Office won’t credit fees paid toward a new application – you’ll have to start all over again.

If you qualify for a Single Application and want RightsClick to file that for you, click the button below.

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Creative Experience: Photographer Michole Forks

Michole Forks

Michole Forks, age 35, is a professional photographer in the Bay Area. He’s passionate about working with families to create meaningful portraits.

Micholino Photography

How long have you been a professional photographer, and how did you get your start?

I have been a professional photographer for 10 years. My journey in photography began as a kid in the 1990’s running around darkrooms at my mom’s job at Chroma Copy Imaging. Chroma Copy was a San Francisco based provider of comprehensive large and small format graphic solutions. My mom and dad worked together in the shipping and handling department where they would package and send out big print jobs for the advertising departments of Macy’s, Nordstrom’s and other high end retail companies. 

In college, I ran into my high school friend Rey who was doing street photography with a Canon AE1.  He took me under his wing and taught me the foundational skills of photography. We worked together on a few small projects, and I fell in love with portrait photography, capturing the essence of my subject in a single frame. Rey at the time was doing galleries, and he inspired me have my first solo gallery show in 2011. After my show, I decided that I wanted to peruse photography more seriously instead of as a hobby, and I took the leap of faith to dive into the professional field.  

I also work in education and taught PE in elementary schools here in the Bay Area. I blended my passion for working with youth with my passion for photography, and that’s how I’m able to keep my sessions playful and engaging with the families I work with.

What are your favorite subjects and why?

My favorite subject is taking portraits of families because each family has its own dynamics, stories, and shared experiences. Being able to document these sacred moments of togetherness and love is incredibly fulfilling.

Is your business driven by client work, sales, licensing, or some combination?

The bread and butter of my business is family sessions, but I also do engagement, maternity, graduation sessions, etc. In the future, I would like to expand my reach into licensing my work to local small businesses.

What’s the best thing about working in the current market?

The best thing about working in today’s market is seeing how fast technology has been improving within the photographer space and how AI has improved and enhanced workflows.

What’s the most challenging thing about working in the current market?

The most challenging issues that I’ve been facing are people not realizing the importance of documenting their most cherished moments of life and properly preserving them in a tangible format outside of the cloud infrastructure. I think people rely too much on social media to save and store their life’s milestones forever, thinking those images and videos will be accessible and readily available 20, 30 years down the line.

Do you retain all rights to your work?

Yes! And all my work to date has been registered with the U.S. Copyright Office through RightsClick

Have you had instances of unauthorized use (piracy) of your work? If so, how did you handle it?

I had a situation with a small business that wanted professional headshots for themselves and their employees last year it was a learning experience. I sent my client a preview gallery to review and to create a favorite’s list of their top photos to purchase. They selected a few but wanted some additional editing for a few photos. I sent the invoice and provided the revised versions but did not hear a response back from them, so I decided to try a different email provided on their website, and that’s when I saw one of my images from our session already on the company’s website!

I did some additional research and found that the client had already put them on his personal LinkedIn page and other websites without paying for the session yet. At the time of the infringement, I did not have insight or direction to know how to handle the situation, so I went to google and found DMCA. I emailed him a DMCA takedown notice, and he responded immediately but If I would have registered my work before sending him previews, I would have had more legal leverage in the situation.

When/why did you come to understand the importance of registering your work with the Copyright Office?

Being a member of ASMP I became aware of the importance of registering my work with the Copyright Office through webinar videos in the ASMP Academy.  I watched a video about the importance of registering your work and how you can turn copyright infringement into income, and I become hooked and realized how important it is for photographers to protect their work.

How did you find RightsClick, and has it been useful in your business?

RightsClick has been of the best and most important additions to my workflow in my business because it’s an investment in protecting and creating actual income from my work. I remember trying to register my work using the eCO system, but it was complicated. RightsClick is quick, and simple to use. Before sending out my work to clients, I make sure to register to the photos to ensure maximum protection before the images go out to the public and online.

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What is Original in Copyright Law?

In casual conversation or art criticism, we tend to use the word original to describe a new work that stands out for one reason or another. But in the world of copyright law, original is not that kind of judgment. Instead, it is a minimum standard for claiming authorship in a work. In fact, the legal standard states that a work must show a “modicum of creativity” for copyright rights to attach to the work.

Because of this low threshold for originality, the Copyright Office does not reject most works for registration on that basis. For instance, no registration specialist is going to read your screenplay and decide it’s a story that’s “been done too many times” and then reject it. By contrast, a visual artwork that consists of nothing more than a circle in the middle of a square (or a banana duct-taped to a wall!) can be expected not to reach the originality threshold.

What Type of Work?

If this sounds like originality considerations vary depending on the type of work, they do. For instance, with a graphic design that contains a word or two, the words’ meaning, no matter how clever, will not be considered; only the design elements in the visual work will matter in assessing its copyrightability. Another field that often entails the most difficult questions is applied art. When an object has both a functional purpose and creative elements, the Copyright Office will consider only the creative elements independent of the utilitarian function of the item.

Think of a glass-blown vase and whether it can legitimately be considered a sculpture separate from its function as a vase. The functional elements will be discounted by the Copyright Office. Similarly, designs intended to be used for fashion or wardrobe—e.g., textile patterns that can be registered as visual works—may be protected, but these elements are viewed separately from their assembly into useful clothing. Thus, a whole dress, with its necessary elements of neckline, waist, length, etc. forms a useful article, which will not be protected.  

Although there are very few hard rules about originality, one that comes up a lot is titles. The Copyright Office has a categorical rule that titles, individual words, and short phrases are not copyrightable. So yes, you could write a book and give it the title, Harry Potter and the Order of the Phoenix without infringing copyright. But you better make sure it’s about a cab driver in Arizona or some other subject matter very different from a boy wizard!

Overall, rejection of registration for lack of originality is not very common. At the same time, the Copyright Office does not often reverse these decisions, and requests for consideration cost additional fees. If you have doubts about whether a particular work would be considered original, seek the advice of an experienced copyright attorney, including the legal services offered by any organization to which you may belong.

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SCOTUS Decision a Win for Copyright Owners

This morning, in the case Warner Chappell Music, Inc. v. Nealy, the Supreme Court decided how far back a plaintiff can recover damages for copyright infringement. The decision is a win for copyright owners.

A Decade of Infringement

The Copyright Act has a statute of limitations of three years, and it is generally agreed that this time begins to run from the moment a plaintiff discovers, or should have discovered, the infringement. The issue in this case is how far back can the damages calculation go? Nealy discovered the infringement and filed suit within three years of that discovery, but the infringement had been ongoing for a decade.

The District Court ruled that damages could also only go back three years, but the 11th Circuit reversed and held that damages can be calculated from the beginning of the infringement. This is known as the “discovery rule.” Today the Supreme Court upheld the discovery rule, allowing creators to obtain damages for infringements of their work for as long as the infringement has been running–as long as they file their infringement suit within three years of discovering the infringement.

This matters to you even if you never go to court., When you are negotiating with someone who used your work without permission, they now face the prospect of a larger damages award if they call your bluff and end up in litigation..

And remember, registration with the Copyright Office is required before you can file an infringement suit. So, whether you plan to sue or just want the option, get those works registered!

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AI and Copyright Registration

If you’re feeling confused about copyright and artificial intelligence, you’re not alone. Many of the issues and conflicts related to this topic are going to work their way through lawsuits and policy changes over the next few years. Meanwhile, the Copyright Office has issued guidelines for registering a work that contains some element(s) produced with generative artificial intelligence (GAI). Although the guidelines themselves are a bit confusing, here are some key points:

Registration Requires Human Authorship

First, be aware that the Copyright Office position is that any material entirely produced by GAI (i.e., has no human authorship) is not protected under U.S. copyright law, and they will not register it. Material produced through a combination of human authorship and GAI may be protectable, if the human authorship is sufficient. So, the Copyright Office requests that an applicant disclose anything in their work that was produced by AI and to describe the human authorship that was added. 

Disclaiming AI in a Registration Application

The Copyright Office guidance on how to communicate this is based on the same principle as limiting your claim—i.e., a way of telling the Copyright Office that some element(s) of the work are not your authorship. A simple example might be a book you wrote with illustrations produced by GAI. Just like any other Limit of Claim, you can tell the Office that you are claiming copyright in the Text and are disclaiming copyright in the Artwork thus:

registration and ai

Additionally, you can further explain to the Office that what is being disclaimed is GAI material. So, for instance, in a note to the Examiner/Specialist, with the above example, you might write, “The illustrations in this book were created using artificial intelligence.” You need not be more detailed than that.

Alternatively, you might register a book containing your writing, some artwork you created, and some artwork that was produced with GAI. Here, you would state that, in addition to the Text, you both claim and disclaim Artwork thus:

registration and ai

And then, you would tell the Office something like, “Some of the artwork was created using artificial intelligence.”

A more nuanced example might be a single visual work that combines your authorship with the use of GAI. Here the limit of claim page might look like this:

registration and ai

But in your description to the Office, this is where it is important to emphasize your contributions to the work. Again, you may not need to go into elaborate detail. The goal is to make a good-faith declaration that at least some aspect of the work was generated by artificial intelligence and some by human authorship.

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5 Reasons Photographers Should Build Copyright Registration into the Budget

It’s affordable.

As an afterthought, any kind of fee might seem pricey. But when you’re planning a project, accommodating less than $100 is probably easy. And because that will cover the registration of up to 750 images on one application, you can protect the photos from a whole job, or possibly more than one job.

It’s a high-value practice.

For example, a group of 100 images costs less than $2 per image to register. But the value of a copyright infringement of just one of those images may be thousands, or tens of thousands, of dollars. Most claims settle out of court—and for a lot more than $2—but what motivates settlements is that registration number issued by the Copyright Office.

It makes contracts meaningful.

You know the old saying about a contract not being worth the paper it’s printed on. Well, this cliché just might apply to that paragraph about retaining your copyrights—if you don’t register the photos. Without registration, your remedies for infringement are so limited that you may not be able to enforce the rights reserved by contract.

It’s good for business.

When you register your photographs, you protect yourself and your clients. If you do commercial work, for example, and some other business uses a photo in a way your client doesn’t like, their best remedy may be helping you enforce your copyright rights. If so, they will truly appreciate your diligence in taking care of registration.

It’s easy with RightsClick.

In a matter of minutes, you can submit a group of several hundred photographs for registration from your RightsClick portfolio, and your application is usually filed with the Copyright Office within 24 hours. You will avoid the hassles of the registration system, and you will build and organize your portfolio according to copyright-relevant information you will need if enforcement becomes necessary.

Click here to learn how easy it is to make copyright registration part of your workflow!

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Taking Action:  DMCA Takedown & Responding to the Infringer of Your Work

When you discover an unauthorized use of your work on a website, there are often two separate but related steps you can take. RightsClick is designed to help you do both and to help you keep track of these actions in your already busy schedule. First, it is essential to understand the difference between the web platform hosting your work and the party who made improper use of your work—because they may not be the same.

For instance, when someone uploads infringing material to a site they don’t own or control (e.g., to YouTube) that person or business is the infringer, and the website is not generally not liable. One action we recommend against is taking your complaint straight to social media to shout at the infringing party. Instead, as the copyright owner, you may wish to take both of the following steps:

1) send a DMCA takedown notice to the hosting web platform to request removal of your material; and

2) consider legal action against the party who used and uploaded your material without permission.

Taking both actions in RightsClick begins with the Infringement Assessment in the Enforcement menu. The Infringement Assessment tool is a simple form you fill out in a few minutes that will guide you in evaluating the strength of your claim, as well as store important information you will need later. RightsClick will then generate an Assessment Summary and give you options to take immediate action, including sending a DMCA takedown notice; sending a preformatted Cease & Desist (C&D) notice to the infringer; or to initiate contact with an attorney—either one you already have, or one listed in RightsClick.

DMCA Takedown

A DMCA takedown notice only requests that the material be removed from the platform. The notice must contain certain information and truthful statements; it must come from a copyright owner or his/her lawful agent; it must be sent to the platform’s registered DMCA agent; and the platform provider is expected to comply with a valid notice. The enforcement tools in RightsClick include a preformatted DMCA notice and simple tools to help you quickly send a notice to the correct registered agent. The information entered into the Infringement Assessment tool will automatically fill out the DMCA notice for you to send to the registered agent. Plus, a calendar item will be added to your To Do list reminding you to follow up—for instance, to confirm whether the platform complied with your request.

taking action

Cease & Desist Notice

You may also choose to contact the individual or business that made unlicensed use of your work to resolve the matter. Once you identify this party, and obtain at least a valid email for them, you can take certain steps yourself to try to resolve the matter quickly (and for free!) before deciding whether to contact an attorney.

Again, the information captured in the Infringement Assessment tool can be used to generate a pre-formatted C&D email sent by you to the party who made infringing use of your work. You can choose to demand only that the use stop; demand that the use stop and that the party pay you a fee of your choosing; or state that you will allow the use for a period of time for a fee of your choosing. All three of these options are available in the built-in C&D tool.

The C&D notice is stored in your Portfolio, associated with the specific Title. The notice is sent via your email, and you keep 100% of any payment by the party who made the unauthorized use. It’s your work and your money. That’s the philosophy on which we built RightsClick!

In building these enforcement tools, our theory was that if you can respond to, say, 10 infringers in the minutes between your real working hours, and if even just a few of those parties resolve the matter by paying you, the time spent will have been more than worth the minimal effort. Also, if you wish to contact an attorney—either right away or after failing to resolve the matter through C&D—you can research and make contact with attorneys in the list we provide and then send them the Assessment Summary to get the conversation started. You can also print or download the Summary to send to any attorney of your choosing.

And, as we continue to preach from the rooftops, ALL your efforts to remedy infringements are made stronger when your work is registered with the U.S. Copyright Office.

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Understanding Limit of Claim in Copyright Registration

When you submit an application to register your work, the Copyright Office asks you to state what you authored and also to “limit” your claim by noting elements of the work that are either someone else’s authorship, or even your own prior authorship. While that can be confusing, it’s actually not too hard.

Claiming copyright in your work while excluding (or disclaiming) someone else’s authorship is pretty straightforward. For example, if you wrote a book that includes photos or illustrations that are other people’s works, you don’t need to tell the Copyright Office who made those works, when they were made, or how many of those works there are. In this example, you would simply disclaim the visual works to inform the Copyright Office that you are not claiming those as part of the book being registered.

This same principle applies when you have created a derivative work,* such as an authorized screenplay based on someone else’s novel or a book sequel in a series you did not originate.. In these examples, you have written new material based on the characters, and perhaps the plot elements, from someone else’s work. Here, you would simply check the “Limit of Claim” boxes to indicate that you are disclaiming literary elements (the prior author’s work) and also claiming your new authorship. If you want to explain any specifics, you can do so in the note to the examiner so they understand more fully.

limit of claim
“Literary Work” example shown.

You are also asked to disclaim your own prior authorship of any elements in a new work being registered. This is because copyright law considers each work to be distinct, and in each work, only the new authorship is protected. For instance, The Cat in the Hat Comes Back has its own registration, but only for the new creative work that was not already registered in the original The Cat in the Hat.

A related question we hear often is whether any changes to a prior-registered work always requires a new registration. You might make edits to an unpublished manuscript or change the color work on a photograph or add a key change to a musical work that was previously registered with the Copyright Office. In many instances (e.g. minor stylistic edits), a new registration is not necessary. The question depends on the extent to which you have created new material that is potentially vulnerable, on its own, to infringement and should, therefore, be registered. On this subject, it’s a good idea to seek the advice of an attorney. In fact, because different expressive media imply different considerations, this is an excellent question for the legal services provided by your advocacy organization, if you are a member.

Finally, the Copyright Office also asks whether the disclaimed work has a registration number. This is something you are more likely to know about your own work than someone else’s work, but you can search the registration records. The registration number of the disclaimed work is not required, but if supplied, it can help maintain a more accurate record.

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Tepp to Speak on NY Times v. OpenAI

On Tuesday, March 12 at Noon EDT, RightsClick co-founder Steve Tepp will join a panel discussing the copyright case NY Times v. OpenAI. The Times alleges copyright infringement by parent company Microsoft and its OpenAI subsidiary, which operates the ChatGPT generative AI platform. 

Like many authors and other creators, the Times is suing for the unauthorized scraping of their protected works for the purpose of building a generative AI system, which, some cases, provides outputs that are substantially similar to the works ingested.

Tepp will discuss the two main legal issues in the case: whether OpenAI’s scraping of works involved “reproduction” under the Copyright Act and, if so, whether OpenAI has a viable fair use defense. On the first point, it seems clear that Open AI must have copied the works, and the only reason there can be any question about this is the lack of transparency as to how developer operates. We’ve seen this tactic before — hiding the details of the technology in ways that frustrate law enforcement. But it isn’t credible and Tepp doesn’t believe it will work.

The fair use question is the bigger one. Others on the panel are expected to argue that generative AI systems are so useful in general that the manner in which they were built should be overlooked. Tepp disagrees. In fact, the Supreme Court’s most recent copyright decision, Warhol Foundation v. Goldsmith, makes it clear that doing cool stuff isn’t enough to justify trampling creators’ rights. And just as RightsClick is a tool to help creators protect their rights, Tepp will be a voice for protecting creators in the courts.

You can register here to register for the webinar. There will be a Q&A session following the discussion.