"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."
