White nationalist Steve King was found liable for copyright infringement for his use of the “Success Kid” meme template in his advertising.
King’s fair use argument failed.
Let’s look at why.
Griner registered the photo with the Copyright Office in 2012 and then licensed the image to businesses like Microsoft, Coca-Cola, and others:
Without permission, King used a version of the meme soliciting donations for his campaign.
Griner sued King and the King for Congress Committee for infringement, the case went to a jury trial, and the Committee was found liable for infringement.
The Committee appealed, arguing that it made fair use of the Success Kid template, and lost.
Here’s how the 8th Circuit looked at the fair use argument:
Recall the four statutory fair use factors, which the court applied (paraphrasing here):
1) The purpose and character of the use, including whether the use is commercial;
2) The nature of the copyrighted work;
3) The amount copied;
4) The use’s effect on the market/value of the work.
For the first factor, the court determined “it is undisputed that the Committee’s use was purely commercial …. The Committee sought to exploit the copyrighted material, for financial gain, without paying the customary price.”
The Committee argued that disseminating a meme on social media is something that happens millions of times a day.
Not a good argument:
The Committee conceded that it had no argument as to the second factor (nature of the work), so the court skipped it.
The third factor cut against the Committee:
The fourth factor (impact on the market for the original work) favored neither party.
While Griner licensed the template to many big brands, “a reasonable jury could conclude that association with King would drive away some potential licensees.”
The takeaway: Using memes for noncommercial purposes is probably fair use in most circumstances.
But using memes in ads probably is not.
Brands using memes in ads should think carefully about the risks.
Read the opinion: https://media.ca8.uscourts.gov/opndir/24/06/223623P.pdf