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.