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Brian Murphy, Lexology; Miss Vanjie! Miss Vanjie!: What RuPaul’s Drag Race Can Teach Us About Fair Use Under Copyright
"When IP lawyers (myself included) see a funny meme like this one, instead of (or perhaps after) chuckling, we often ask ourselves: did the creator get clearance, and, if not, how many different rights were potentially infringed? The Bart Simpson/Vanjie meme incorporates footage from The Simpsons and audio from Drag Race, potentially implicating copyright; it features the Bart Simpson character, potentially implicating both trademark and copyright law; and it includes the voices of Nancy Cartwright and Mateo, potentially implicating right of publicity. It’s highly unlikely that the genius behind this meme got permission from any of the rights holders. Which raises the question: did he or she need to?
This question is an important one. Although many (most?) people, at one time or another, have incorporated third party content (without permission) in public social posts or private texts, few (I am certain) have given much thought to what they were doing. In this post, I briefly outline some thoughts on the copyright issues raised when third party content (including film clips, audio, and photography) is used in memes. (I leave trademark and right of publicity issues for another day.) My conclusion is that while I believe the use, without permission, of third party content in memes, as a matter of policy, often presents a compelling case for fair use under copyright law – at least where the use is not commercial and serves a socially valuable communicative purpose – I am not confident that courts, under current precedents, would consistently find them to be so.
If you think that memes like these are frivolities that do not warrant serious investigation, think again. The creation and sharing of memes has become an important way that news (hard news, soft news, real news and fake news) is shared, commented upon and processed. The unauthorized use of third party content within memes must be evaluated in that context."
