In September 2017 the European Parliament voted on – and approved – an amended version of the EU copyright law that was rejected by the same body in July of this year.
Article 13, and its sibling Article 11 are contentious pieces of EU copyright law that, opponents claim, could destroy the internet as we know it. It’s been referred to as the “meme ban”, as well as censorship.
However, its supporters say it’s necessary to support creatives online.
The divisive legislation was put to the ultimate democratic test in Strasbourg, with 438 voting in favour of the measures, 226 voting against and 39 abstaining.
The proposed changes have split opinions, with proponents of reform including many notable musicians and artists, such as Wyclef Jean, who made an appearance in Strasbourg. Opponents of the legislation include websites and internet presences who claim the laws will mark the end of “meme” culture and user-generated content.
As for the immediate future, nothing’s going to change yet. State leaders within the EU still need to sanction the changes before individual countries start hashing out the legal minutiae of the change.
A particular point of contention is Article 13, which, were it to come to fruition, would make platforms like YouTube liable for copyrighted material. As such, platforms would require agreements with content producers (or whoever owns the rights to the music, film or television being shared).
YouTube has taken a particularly vocal stance against the proposed change, with the firm’s CEO Susan Wojcicki taking to Twitter to voice her stance: “Article 13 could put the creative economy of creators and artists around the world at risk,” she propounded.
What are the copyright laws?
Firstly, a meme’s legal framework can be defined as follows:
“An internet meme is in legal terms, a derivative work, and usually copyright owner is the only party with the legal right to create a derivative work.”
Generally, the criteria of whether a meme is deemed an infringement is based on four things: the purpose behind the meme, i.e. if it was used for profit; the nature of the work; how much of the work has been used; and, how the use impacted the potential market for the copyrighted work.
So in short, using memes on a personal platform for fun and not commercial gain may be deemed more acceptable than using memes for advertisement.
And even though the original owner to a humorous photo may not take action to sue, gambling with the idea is a risk that businesses should avoid.
So what happens if you get a take-down letter from a copyright owner or licensing agency?
There’s no need to cave fast under pressure when faced with a “Getty letter” or letter from another copyright owner or licensing agency in relation to an internet meme. Getty’s business is copyrighted images, and as such, they have a vested interest in earning money through protecting its works, however, things may not always be as they seem.
This is where it can be helpful to have a developed relationship with an attorney! Before you pay up, make sure you even need to.
So even before you talk with your attorney, initially confirm that the image in question is, in fact, the same or similar to the image in the meme. In other words, make sure you’re talking about the same thing!
Second, make your own judgment about whether the use of the image constitutes fair use.
Are you making money out of it? Even indirectly? Does it constitute commentary and thus equates to parody or satire? How much of the image did you use? Is the image of a character or of a medium that is susceptible to other uses?
You would still need to prove the “fair use” during legal processing, but copyright holders or licensing agencies are less likely to proceed with legal action if they think it is more trouble than it is worth financially.
It will help to have thought about these questions before you consult with your Attorney.
Finally, it might be helpful for your own knowledge to do a “fair market value analysis” in order to determine whether the figure the copyright holder or licensing agency claims the image is worth, is the actual fair market cost of the image.
What if it is your image that has been turned into a meme?
Consider whether you might be able to turn the meme into a form of advertising for your own business. You will want to decide if you think it is satire or parody. You will also want to decide if you think those that created or are sharing the meme are making money, even indirectly, from your work.
Take a look at the questions I posed to those who receive a take-down or pay up the letter and see how you would answer these as the copyright owner.
In any case, you will want to talk to an Attorney about the contents of any take-down or pay up the letter you might consider sending to both the creator and anyone who publishes a meme that includes your copyrighted image.