On July 7th 2024, the Court of Appeal of the United States issued an important judgment on the protection of a meme, generally known as an image or video that, combined in some cases with a caption, is usually aimed at entertaining and made to be widely shared on the internet, mainly through social media.
The lawsuit
The lawsuit concerns a request for compensation presented by the mother of the child pictured in the famous photo of the meme known as “success kid” for copyright and privacy infringement. The mother – who owns the copyright on the image – registered the photo at the Copyright Office of the United States in 2012 and brought a lawsuit for the unauthorized use of the same.
In particular, the “King for Congress” Committee and the candidate were sued for having used the photo at issue on the Twitter (now known as X) profile of the Committee, without any authorization, for the request of funding through donations in the context of the political campaign.
The District Court ruled that liability for copyright infringement alone rests solely with the Committee, sentencing it to the payment of a sum of money in favor of the owner of the rights on the picture as compensation for the damages.
Implied license and Fair Use
Subsequently, the Committee presented appeal against the decision of first instance, stating the presence of an implied license and therefore, the absence of copyright infringement, calling for fair use, that is a fair and lawful use of the picture object of dispute. Furthermore, the Committee contested the evaluation of the evidence and damages made by the District Court, as well as the dispositions relating the attribution of the legal expenses.
The Committee, during the proceeding of second instance, dropped the argumentation related to the implied license, as its defense recognized the absence of the necessary requirements developed in this regard by the US case law.
As for the fair use, the US copyright law establishes that a legitimate use of a protected work does not constitute copyright infringement. In order to determine if the use is actually legitimate, it is necessary to take into consideration four factors:
- the purpose and type of use, including whether such use is commercial or for non-profit educational purposes;
- the nature of the work protected by copyright;
- the quantity and relevance of the part used with respect to the copyright protected work in its whole, and
- the effect of the use on the potential market or on the value of the copyright protected work.
In the context of the evaluation of the above-mentioned requirements, the judge held that the argumentation used by the appellant about the large use of the image at issue on the internet was irrelevant. For what pertains to the requirement relating to the impact of the disputed use on the copyright protected image, the Court could not establish with certainty such type of aspect.
In any case, from an overall analysis of the above-mentioned factors relating to the case at issue, since the picture was used without authorization for commercial purposes and the essential part of the protected image had been used without any substantial modification, the judge of second instance decided that there were more favorable aspects aimed at supporting the protection of the copyright of the appealing party.
Decision of appeal
In light of the above and contrary to the appellants’ allegations, upon further analysis on appeal, the Court found the absence of a legitimate use by the Committee of the copyright protected picture for the above-mentioned motivations, upholding the remaining conclusions reached by the District Court in the first instance regarding the assessment of evidence and damages, as well as legal fees.
Elena Bandinelli