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Heather OConnell
CST 300
December 16, 2016

Use of Copyrighted Material in Internet Memes

Part I

Internet memes have become key figures in modern Internet culture over the course of

the last 30 years, but their rise to fame has been accompanied by licensing disputes over

copyright. Copyright and its opposition, Fair Use, both play a role in the issue of copyrighted

material used in memes. There are multiple perspective on the issue as well as a few possible

solutions to the confusion about whether or not internet memes should be considered Fair Use.

The term meme is derived from the Ancient Greek mimema, meaning something

altered (Brzei, 2013). It was first used in Richard Dawkinss 1989 publication, The Meme

Machine, to describe a unit of cultural evolution. In that same decade, the emoticon appeared in

online forums and is considered one of the first internet memes. In conjunction with increased

Internet usage in the following decade, improved functionality of programs such as Photoshop

and in-browser editors in the 1990s made the creation of memes easier, causing internet memes

numbers to dramatically increase. This culminated in the creation of websites dedicated to

internet memes in the early 2000s, such as9gagand memebase(Brzei, 2013). However, the

term meme specifically used to refer to internet memes did not appear in mainstream language

until 2009 (Rosa-Carrillo, 2015).

The definition of the term internet meme varies according to the individual. However,

the generally agreed upon criteria for an internet meme is its transformative and communal

nature as it is transmitted from person to person. Rosa-Carrillos definition supports this criteria,
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defining an internet meme as the posting, sharing, and remixing of digital content to

communicate jokes, emotions, and opinions (2015). Waddock builds upon this definition by

acknowledging that there is a core shared understanding in each meme that is born from a

common cultural experience (2015). This shared understanding must be retained throughout each

evolution of a meme in order for the intended meaning to connect with the viewer.

In addition, although many people are familiar with a variety memes, there are actually

two major categories of internet memes. Knobel and Lankshear describe these two categories as

high fidelity static memes and remixed memes (2005). The category of an internet meme is

determined by the manner in which it is remixed and shared. High fidelity static memes are

replicated without much alteration, whereas remixed memes are replicated with a high degree of

variation (Knobel & Lankshear, 2005). The most widely used internet meme is known as the

image macro, which is an image superimposed with witty text (Brzei, 2013; Rosa-Carrillo,

2015). However, not all internet memes are widely used and popularized. Waddock has found

that a successful memeotherwise known as a meta-meme or memeplexachieves success

because it can transcend the original context while simultaneously adhering to current cultural

standards (2015). Perhaps this is why it is so common to use widely publicized copyrighted

content in internet memes because it is already known to a large number of people, thus building

upon a shared knowledge base.

As the name suggests, copyrighted content is protected under copyright law, which has

existed in the United States since 1783 and has since undergone multiple changes (United States

Copyright Office [USCO], 1973). Copyrights are issued by the United States Copyright Office

after a claim is registered within five years of the original publication. Originally, Copyright
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literally referred to the rights to copy ones work, but now it encompasses all protections

regarding an individuals original creations. Depending on the nature of the material, Copyright

includes the reproduction, derivation, distribution, performance, display, and transmission of

ones original work. Copyright protects works of literature, drama, music, architecture,

cartography, choreography, pantomime, picture, graphic, sculpture, and audiovisual. However it

does not apply to ideas, procedures, processes, systems, titles, principles, or discoveries (USCO,

n.d.a).

Copyright infringement is when copyrighted work is reproduced, derived, distributed,

performed, or displayed without permission from the copyright owner (USCO, n.d.b). There are

judicial procedures and monetary penalties for committing Copyright Infringement. The

copyright owner may receive payment from the infringer for actual damages as well as statutory

damages, which range between 750 dollars to 30,000 dollars. A copyright owner may also decide

to issue an appropriate licensing fee determined by the industry rate (USCO, n.d.c).

In contrast, Fair Use is considered a defense against claims of Copyright Infringement.

The definition of Fair Use is purposefully ambiguoussimilar to Freedom of Speechto allow

room for interpretation (Stim, 2016). Fair Use allows the use of works protected under Copyright

without permission from the copyright owner. However, this is limited to particular

circumstances, such as criticism, commentary, reporting, teaching, scholarship, and research. In

order for a work to be considered Fair Use as opposed to Copyright Infringement, it must meet a

set of four criteria: purpose of use, nature of material, amount of the original, and effect on the

originals value (USCO, n.d.d).

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Educational, noncommercial, and transformative purposes are more likely to be

considered Fair Use as long as the transformative use repurposes the work by adding something

new rather than substituting (USCO, n.d.d). In addition, parody and limited access also favor

Fair Use (Crews, 2008). Parody is considered a form of comedic commentary and requires use of

the original content (US Supreme Court, 1994). In contrast, satire is criticism of something else

rather than the content itself, therefore it is not considered Fair Use despite common overlapping

with parody (Marshall & Siciliano, n.d.).

The nature of the unlicensed material should not be creative or imaginative because that

is the purpose of Copyright: to encourage creative expression by protecting creative works

(USCO, n.d.d). Without a licence, the amount of work used in relation to the whole should be

appropriate for the intended purpose and not central or significant to the entire work (Crews,

2008). Lastly, the effect of the unlicensed use must not potentially damage the market or value of

the original work (USCO, n.d.d). For example, distributing a commercially available work

online, making numerous copies, repeated or long-term use, and creating a similar product all

oppose Fair Use (Crews, 2008).

The issue in relation to internet memes and Copyright is whether or not the use of

copyrighted material in memes is considered Fair Use. In terms of the four Fair Use criteria,

internet memes can be considered a transformative use and sometimes parody as well. In

addition, the materials used are generally taken from published creative works, such as television

shows, films, and photography. The amount used is typically limited to a small quantity in

comparison to the entire work, such as a single screenshot image. As for the effect, internet

memes by nature are publically available on the web in numerous forms with numerous copies
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for repeated use. However, the financial impact is negligible because internet memes are shared

without monetary profit and there is no significant damage to the potential market and value of

the original work.

The primary stakeholder in this issue would be the copyright owner. The copyright owner

is the individual who has the Copyright to the material used in an internet meme. For example,

the photographer of an image later used in a LOL Cat meme or the distributor for a television

show of which a popular scene has been turned into a GIF. If an internet meme uses copyrighted

material, then the copyright owner does not receive any revenue from licensing fees. The

copyright owner could make a claim of fact: that they have exclusive rights to the reproduction

of their material as the owner, which is entirely true under copyright law.

Another impact from the use of copyrighted material in internet memes would be a lack

of control over the distribution and nature of the work derived from the original material. With

no control over the distribution, the copyright owner cannot know where their work is being

used, who has access to the material, or how many people are viewing their work. The copyright

owner cannot control in the nature of the derivation either, which may lead to their work being

used in a manner that is against the owners intentions. Due to this potential impact on the

copyright owner, they might make a claim of cause: that the inability to control distribution and

derivation over their work causes damage to their market and value. This is a direct violation of

the fourth criteria of Fair Use.

In contrast, the impact from using unlicensed materials in memes can also serve as a form

of unpaid advertisement toward the original work. No money is exchanged when the licensing

process is bypassed in this manner, so neither the owner nor the user pays for their services. The
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copyright owner could make a claim of fact: that due to the noncommercial nature of this

purpose, the usage of their material in internet memes falls under the first Fair Use criteria.

Altogether, the copyright owner uses an Egoist ethical framework for their reasoning due

to the self-interest in their claims. Ethical Egoism asserts that it is well within an individuals

rights to define and pursue their own interests, especially to promote their own good (Moseley,

n.d.). By claiming copyright over their material, the copyright owner is protecting their own

market and value as well as a source of revenue. Allowing free advertisement of their work

through unlicensed use in memes also serves in their self-interest by keeping their money while

still receiving the publication. The copyright owners interests and the pursuit of their interests is

in line with the Ethical Egoist framework.

In contrast to the copyright owner, the second stakeholder is the meme creator. The

creator of a meme is the individual who takes copyrighted material and creates an internet meme

without acquiring a licence. Facing potential penalties from the copyright owner is an impact

from using copyrighted material in an internet meme. If the meme is not found to be Fair Use,

the meme creator may have to pay the copyright owner for the unlicensed use of their work. In

addition, this could also potentially harm other meme users who repost or share the unlicensed

meme without permission from the copyright owner, thus committing secondhand Copyright

Infringement. This means the meme creator may cause someone else to face monetary penalties

due to their creation. The meme creator could make a claim of resemblance: that internet memes

are similar to parodies in the form of comedic commentary, which is accepted under Fair Use.

However, parody and satire often overlap in memes, so the resemblance claim does not apply to

all internet memes.

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On the other hand, another impact from the meme creators use of copyrighted material

in internet memes is is the amusement provided to those who view the meme. Memes are

designed to be taken in humor, so the meme creator might make a claim of value: that everyone

one who views a meme takes some form of enjoyment out of the shared cultural experience. If

everyone who views a meme is amused, then there is no harm.

An increased amount of creative expression is an additional impact of a meme creator

using copyrighted material. Internet memes by definition have to evolve, adapt, or transform

with each iteration, so within each transformation is evidence the creators unique creativity. The

meme creator could make a claim of fact: that by exerting their creativity through memes, they

further Copyrights purpose of encouraging creative expression. However, this is a false claim;

Copyright is meant to encourage creative expression of original work and the use of highly

creative work actually opposes Fair Use.

The meme creator uses a Utilitarian ethical framework.As a form of consequentialism,

Utilitarianism values an increase in good things and a decrease in bad things (Nathanson, n.d.).

This is adheres to the meme creators reasoning of spreading amusement and expressing

creativity, which are both good things. Furthermore, the meme creator does not intend any bad

things from their actions. The reasoning of the meme creators impacts also refers to Virtue

Theory. For example, Ross describes duties of nonmaleficence and reparation as moral

obligations: nonmaleficence meaning not injuring others and reparation meaning compensation

for harm (Simpson, n.d.). Together, the meme creators reasoning is a mixture of Utilitarianism

and Virtue Theory.

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The third and final stakeholder is the meme user. The meme user is anyone who views,

shares, or reposts an internet meme. If a meme user shares a meme with copyrighted material,

they continue the meme circulation started by the meme creator. The continuation of the meme

creators actions is an impact of the meme user, thus creating similar claims and reasoning

between the meme creator and meme user. For example, a meme user is also subject to monetary

penalties from the copyright owner because they continued the distribution of unlicensed work.

Therefore, the meme user might make the same claim of resemblance to parody in Fair Use. The

meme user also contributes to the amusement of others, so they may also make the same claim of

value: that everyone enjoys internet memes. Due to the similarities between the meme user and

the meme creator, the meme user also exhibits a consequentialist Utilitarian ethical framework

with a strong focus on the positive impacts over the negative impacts of their actions.

As it currently stands, internet memes fall in the range between Copyright Infringement

and Fair Use. It is very easy to find and use copyrighted content on the Internet. Furthermore,

once digital material is published online, it is very difficult to stop the spread and reproduction.

For the content owner, this means that their copyrighted materials are free to roam the Internet

unchecked, causing the owner to be in a constant state of pursuit in order to find who is using

their material. For the meme creator and meme user, they see the copyrighted material being

used by someone else and do not see the penalty in using it themselves. In addition, Many

Internet users do not understand the ramifications of Copyright Infringement and are confused

about the criteria for Fair Use, causing unintentional harm for copyright owners as well as meme

creators and meme users.

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One possible solution is to make the Fair Use guidelines easily understandable to the

average Internet user. The ambiguity of the current Fair Use guidelines allows room for

interpretation, but the average Internet user cannot accurately interpret the legalities of Fair Use.

If Fair Use guidelines were defined with an emphasis on is what is allowed and what is not

allowed, then much of the confusion could be eliminated. For example, if the guidelines focused

on the potentially harmful Fair Use violations, then it would be much easier to follow no profit

from use and no defamatory content toward the original work or owner. This solution is

favorable for the meme user, who is most likely to unintentionally commit Copyright

Infringement. However, an assumption with this solution is that the copyright owner would be

satisfied with any other internet meme violation beyond the two most harmful.

Another potential solution is an overarching, mandatory response to the use of

copyrighted materials in internet memes. Part of the confusion for Internet users is the lack of a

universal response to Copyright Infringement in internet memes; some copyright owners pursue

Copyright Infringement claims while others are content to ignore the infringement. This means

there is a large number of unlicensed memes online that Internet users misinterpret as unwritten

acceptance of the use of copyrighted material. This solution favors the copyright owner because

it defers to their exclusive reproduction and derivation rights. Although, this assumes that all

copyright owners would prefer the elimination of internet memes over the advertisement memes

provide for their work.

A third solution is an alteration to how licensing operates for content published on the

Internet. Rather than retroactively collecting licensing fees through Copyright Infringement

claims, it would be more effective to automatically receive money from any site that uses
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copyrighted material without a licence. The fees could be paid from advertisement on the site.

This solution caters to the copyright owner as well as the meme creator and meme user. The

copyright owner benefits because they do not need to pursue Copyright Infringement claims and

can receive passive income. The meme creator and meme user benefit because they do not need

to worry about accidentally committing Copyright Infringement while continuing to create and

share memes. However, the assumption is that internet memes published online using

copyrighted material would also have paid advertising on the same site.

Part II

Each solution has positive and negative elements, but the most favorable solution is the

altered licensing fee payment method for digitally published content. Due to the difficulty in

restricting the use and spread of copyrighted material online, it is more reasonable to change the

system than to tirelessly work to fix current difficulties. Copyright and Fair Use has changed

along with the evolution of the Internet, but the previously effective protections may not work

with the currently evolving Internet culture. In addition, changing how licensing fees are paid for

copyrighted material in memes may also apply to other cases of Copyright Infringement on the

Internet.

The third solution is also most favorable because it acknowledges all of the stakeholders

perspectives. The copyright owner values the rights to their work, so by tracing all usages of

their work, the copyright owner can maintain authority over their creations in addition to

compensation for their use. The meme creator can continue to create enjoyment and creativity

with their memes without facing penalties from the use of copyrighted material. Similarly, meme
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users can continue the meme creators work without fear of a Copyright Infringement claim. An

alteration to the licensing payment system is favorable due to its appeal to all stakeholders.

Regardless of the solution, use of copyrighted material in internet memes should be

allowed under Fair Use. According to Crewss Fair Use Checklist, internet memes qualify for an

equal number of favors Fair Use and opposes Fair Use list items (2008). The deciding factor

would be the significance of each item. For example, public access on the web is a strong mark

for the opposition of Fair Use, but Fair Use is more favorable when weighed against the minimal

effect on the market, miniscule portion of the whole, and noncommercial purpose.

My main assumption is that harm is unacceptable while no harm is acceptable. Whether

or not my decision causes a harmful impact on myself or others is how I determine right from

wrong. This is a consequentialist ethical framework similar to the Utilitarian beliefs of

Bentham and Mill. If the impact of my decision is more negative than positive, then I will not

choose that decision. This is why internet memes are an acceptable use for copyrighted material

because of the overall happiness created by the viewing and sharing of memes outshines any

potential pain.

Another assumption is that using copyrighted material for something as innocuous as an

internet meme cannot cause irrevocable harm. In a world with serious issues that potentially

determine life, death, or thousands of dollars, the amusement provided by memes is more

beneficial than any potential damages from the use of copyrighted material. In addition,

Copyright Infringement claims over internet memes that may fall under Fair Use are trivial and

petty.
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My biases are twofold. One, Copyright Infringement is rampant on the Internet

nowadays, causing an overall desensitization toward the unlicensed use of anothers work. The

severity of using copyrighted work has been dulled due to the overexposure of unpunished

Copyright Infringement online; perhaps if the infringement was more publically penalized, my

opinion would differ. Two, I enjoy internet memes. On a personal level, internet memes elicit

enjoyment, which is more valuable than the negligible negative impact. If internet memes were

less enjoyable or if the negative impact were more significant upon myself or the copyright

owner, I would probably feel differently.

Either way, nothing will change regarding the use of copyrighted material in internet

memes and Fair Use until it goes through the court system. One or more of the solutions for this

issue will have to be implemented within the next decade due to the profuse amount of Copyright

Infringement on the Internet today. Although internet memes are innocuous enough that they will

not cause a reevaluation of Copyright and Fair Use legislation in the coming years, memes will

definitely be influenced by any decisions made.

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