Home Others Critical Corner – What Do You Meme?: Eine Fair-Use-Analyse

Critical Corner – What Do You Meme?: Eine Fair-Use-Analyse

2. August 2019

Max Offsay

On my first night at home for the spring break, I hung out with my siblings and one of them brought out a game I'd never played called What Do You Meme? Looking for the gameplay of the popular party game Card’s Against Humanity with the internet sensation of Memes, What Do You Meme? is a game by Elliot Tebele, better known by his Instagram handle @FuckJerry. The game is very simple. There are two types of cards: picture cards, which contain images associated with a popular meme, and captions, which contain actual captions that Tebele posted on his famous Instagram account. For each round, one of the players acts as a judge and chooses a face card. The rest of the players then put the picture caption cards in their hands that the judge finds funniest in relation to the picture.

I had a great time playing the game, but on my drive home the curse of being a law student hit me and I started thinking about the game's copyright implications. I couldn't help but think of the fact that the copyright on each of the images used on the cards in the games likely belongs to someone other than Tebele. When I got home I tried to see if there was any information about whether the Tebele had licensed the images for the game, but as I expected, I couldn't find any information of that nature. The only references to copyright on the game's website relate to copyrights acquired by the game's creators for text, graphics and photos on the game's packaging and on the website. It is not surprising that this information is not available, as memes are often used without permission or even attribution from the copyright owner of the image. Tebele and his Instagram colleague Josh Ostrovsky, better known on Instagram as @TheFatJewish, both rose to fame for posting memes with humorous captions, but also received backlash when it became clear that the creator of the content that they were was lacking credit was granted use. The game has become quite popular, having originally raised nearly $ 230,000 from over 5,750 backers on Kickstarter, and is now available on its own website in addition to three expansion packs.

Unable to find any information on the licensing of the images used in the game, I thought, is it possible that such a successful game could clearly violate copyright law, or is the game using the 'images so that their use does not constitute an infringement? The remainder of this post is devoted to performing a rudimentary fair use analysis of the use of the images in What Do You Meme? to predict how a court would deal with a potential copyright infringement suit related to the game.

To conduct a fair use analysis, courts use a four-factor test of 1) the purpose and nature of the use, 2) the nature of the copyrighted work, 3) the amount and materiality of the part used, and 4th analyze) the impact of the usage on the market for the original work. No single factor is decisive in determining whether a work is fair use, but the courts are free to give more or less weight to certain factors depending on the facts of the case.

  1. Purpose and character of use

in the Campbell versus Acuff Rose , the Supreme Court introduced the idea of ​​transformative use, which has since become the most important element of any fair use analysis. The Court found that the analysis of the first factor should revolve around whether the use has sufficiently altered the copyrighted work by giving it a new phrase, meaning or message. Using these analytical memes in general, it is possible that adding a humorous caption changed the meaning or message of an image enough to warrant appropriate use. This line of reasoning can even be broadened in relation to the game as the images have been transformed from an artistic purpose to a role in the game. One could analogize the case Bill Graham Archives v. Dorling Kindersley in which the Second Circuit determined that the use of seven posters in a Grateful Dead illustrated book was fair use as the purpose of the use was converted from artistic in nature to the representation of a historical event. Thus, the use of the images in the game's format could change their purpose sufficiently to meet the first factor of a fair use analysis.

  1. The nature of the copyrighted work

In this case, this factor speaks against the determination of fair use, since the works protected by copyright are images of an artistic nature that represent the core of what copyright is intended to protect, and not factual or historical works that are in the Generally less protected.

  1. Amount and materiality of the proportion used

At first glance, this factor would also speak against fair use, since all of the copyrighted images are used in the game. However, courts have allowed the use of a copyrighted work in its entirety if necessary to achieve the transformative purpose. in the Perfect 10, Inc. gegen Amazon.com, Inc. , the Ninth Circuit determined that Google's use of all of the copyrighted images was a fair use as the thumbnails were being used to facilitate an image search database, a transformative purpose, and that purpose required the use of the entire image. In this case, the potential transformative use of the images for a game requires that the entire image be used, and therefore less weight is attached to this factor.

  1. Impact on the market

The final factor, the effect of usage on the market, is also one of the most difficult to analyze. Damaging the market for the original work is generally not enough to weigh against fair use; rather, the courts are concerned about whether the use would usurp the market for the copyrighted work or, alternatively, a derivative market that the author would own develop in general, or license others to develop. Therefore, in this case, a court would have to analyze whether the use of the images in this game has usurped a potential market for the original creators of the images. I think this is the crux of the argument. Although the images in question can be found all over the internet and thus the damage this game does to their market seems minimal, there is an argument that the original creators should have the right to opt out of using their images for use in products like What. to license Do you make memes?

Looking at every factor, it seems like a plausible argument that even if the imagery used in the game were not licensed, the transformative nature of the game would represent fair use. However, it is also possible that the mere use of these images in a game would not be transformative enough for a court to judge as fair use, or that the use is causing too much damage to the market and therefore the use is an infringement.

Campbell gegen Acuff-Rose Music, Inc. , 510 USA 569,579 (1994).

Bill Graham Archives v Dorling Kindersley Ltd. , 448 F.3d 605 (2. Cir. 2006).

David G. Savage, Supreme Court Could Legalize Sports Betting in States That Want Los Angeles Times (December 4, 2017), http://www.latimes.com/politics/la-na-pol-court-sports-betting-20171204-story.html

Lorelei Laird, do memes infringe copyright? ABA Journal (September 2015), http://www.abajournal.com/magazine/article/do_memes_violate_copyright_law

Maya Kosoff, This Instagram User Goes Viral Without Taking His Own Pictures, Business Insider (October 6, 2014), http://www.businessinsider.com/these-instagram-users-are-going-viral-without-taking-any-of-their-own-pictures-2014-9

Perfect 10, Inc. gegen Amazon.com, Inc. , 508 F.3d 1146 (9. Cir. 2007)

https://whatdoyoumeme.com

https://whatdoyoumeme.com/pages/terms

https://whatdoyoumeme.com/pages/copyright .

https://www.kickstarter.com/projects/whatdoyoumeme/what-do-you-memetm

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