DISCLAIMER: Elyse Bruce and guest bloggers on this site DO NOT offer or give any legal or medical advice. Always consult with your legal counsel or legal representative with regards to legal matters.
Every once in a while, someone on social media is up in arms over a meme being shared, claiming copyright infringement. The wording may be similar to something the complainant wrote somewhere else on the Internet, and on that basis, the assertion is made that the complainant’s intellectual property has been infringed upon.
What isn’t protected by copyright?
Determining what is and isn’t protected isn’t as difficult as you might think. The following are not copyrightable.
1. ideas, methods, and systems;
2. processes, concepts, principles, and discoveries;
3. devices (although written and recorded descriptions, explanations, illustrations related to the product or service are copyright protected);
4. names, titles, shorts phrases, or expressions;
5. works, such as memes, that are not fixed in a tangible form of expression;
6. works that share information that is commonly available; and
7. works by the federal government.
When a meme is sharing copyrighted text (with or without attribution), the copyrighted text may or may not be infringed upon depending on a number of factors.
However, when a meme is imparting information, that portion of the meme cannot be copyrighted.
What is protected by copyright?
While copyright can be difficult to understand, it’s important to realize that following categories cover works that can, and may, be copyrighted:
1. literary works (which includes computer software);
2. musical works, including any accompanying words;
3. dramatic works, including any accompanying music;
4. pantomimes and choreographic works;
5. pictorial, graphic, and sculptural works;
6. motion pictures and other audiovisual works;
7. sound recordings; and
8. architectural works.
The visual artwork included in a meme is copyrighted by the person(s) who created the visual, not be the person who created the meme.
The text, provided that it is not otherwise excluded from copyright protection, is copyrighted by the person(s) who created the copyrightable text, not by the person who created the meme.
What about Fair Use?
While there are many rights accorded copyright owners, there is a segment of copyright that allows for Fair Use with specific limitations clearly set out. Where a party claims Fair Use as a defense against copyright infringement, the courts consider many aspects, and take into consideration these four points especially.
1. the purpose and character of the use (ie. was it for educational purposes or for commercial purposes);
2. the degree of fact versus creativity in the work (the more factual and less creative, the more likely it will be considered by the courts to be Fair Use);
3. the amount of the allegedly copyrighted work as a whole that is alleged to have been infringed upon; and
4. the impact on the copyrighted work as a whole resulting in substantial financial losses to the copyright owner(s).
Courts making a determination of copyright infringement and/or Fair Use will consider these four factors among other factors to determine a finding.
Do you have to register with the U.S. Copyright Office or the Canadian Intellectual Property Office to secure copyright?
Copyright exists upon creation, and where there is a fixed tangible copy. A tangible copy is considered to be one where the work can be seen or heard either directly or with the aid of a machine or device. This covers such things as books, manuscripts, sheet music, computer documents, film, videos, CDs, DVDs, and more.
Copyright only covers significant and unique creative expression fixed in a tangible medium. Memes, by law, are not considered fixed in a tangible medium. Sharing information is not a unique creative expression. Memes as a whole are not covered by copyright, trademark, or other IP law although certain components of a meme may be covered.
Take the time to know what parts of a meme you are sharing are covered, if at all, by copyright. If you think something might be covered by copyright, secure permission before sharing. If none of the components of the meme are copyrightable, or you own copyright to those components that are copyrightable, you should be good to go.
When in doubt, however, either refrain from sharing the meme or check with legal counsel before sharing.
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