Max Offsay
On my first night home for spring break I was hanging out with my siblings and one of them brought out a game I hadn’t played before called, “What Do You Meme?” Seeking to combine the gameplay of the popular party game “Card’s Against Humanity,” with the Internet sensation of memes, “What Do You Meme?” is a game created by Elliot Tebele, better known by his Instagram handle @FuckJerry. The game is very simple. There are two kinds of cards: picture cards, which include pictures associated with a popular meme, and caption cards, which include actual captions that Tebele has posted on his famous Instagram account. For each round, one of the players serves as the judge and chooses a picture card. The rest of the players then submit whichever of the caption cards in their hands that they think the judge will find the 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 struck me and I began to think about the copyright ramifications of the game. I couldn’t help but think about that fact that the copyright to each one of the pictures used on the cards in the games is likely owned by someone other than Tebele. When I got home I tried to see if there was any information on whether the Tebele had licensed the images for the game, but as I expected, I couldn’t find any information of this nature. The only references to copyright on the website for the game are to copyrights obtained by the game’s creators for text, graphics, and photos on the game’s box and on the website. It is not so surprising that this information is unavailable since memes are often used without permission from or even attribution to the owner of the copyright in the image. Tebele, and fellow Instagram mogul Josh Ostrovsky, better known on Instagram as @TheFatJewish, both became famous by posting memes with humorous captions but also both received backlash when it became clear that credit was not being given to the originator of the content that they were using. The game has become fairly popular after originally raising almost $230,000 on Kickstarter from over 5,750 backers, and is now available on its own website in addition to three expansion packs.
Because I could not find any information regarding the licensing of the images used in the game, it got me thinking: Is it possible that such a successful game is clearly violating copyright law, or perhaps, does the game make ‘fair use’ of the images, such that their use does not constitute infringement? The rest of this post will be dedicated to conducting a rudimentary fair use analysis of the use of the pictures in “What Do You Meme?” in an effort to predict how a court would handle a potential copyright infringement suit in relation to the game.
To conduct a fair use analysis, courts use a four factor test in which they analyze, 1) the purpose and character of the use, 2) the nature of the copyrighted work, 3) the amount and substantiality of the portion used, and 4) the effect of the use on the market for the original work. No single factor is determinative of whether a work is fair use but courts are free to grant certain factors more or less weight depending on the facts of the specific case.
- The Purpose and Character of the Use
In Campbell v. 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 stated that the analysis of the first factor should revolve around whether the use sufficiently transformed the copyrighted work by giving it a “new expression, meaning, or message.” Applying this analysis memes in general, it is possible that the addition of a humorous caption sufficiently changed the meaning or message of an image to constitute fair use. This line of reasoning can be extended even further in relation to the game as the images have been transformed from having an artistic purpose to having a role in the game. One could analogize to the case, Bill Graham Archives v. Dorling Kindersley, in which the Second Circuit found that the use of seven posters in a Grateful Dead coffee table book constituted fair use as the purpose of the use was transformed from being artistic in nature to being used for the depiction of a historical event. Thus, the use of the pictures within the format of the game could be seen as sufficiently transforming their purpose to satisfy the first factor of a fair use analysis.
- The Nature of the Copyrighted Work
This factor weighs against a finding of fair use in this case as the copyrighted works are images that are artistic in nature, which is the core of what copyright is meant to protect, rather than factual or historical works, which generally receive less protection.
- The Amount and Substantiality of the Portion Used
On its face, this factor would also weigh against fair use as the entirety of the copyrighted images is used in the game. But, courts have permitted the use of a copyrighted work in its entirety if it is necessary to achieve the transformative purpose. In Perfect 10, Inc. v. Amazon.com, Inc., the Ninth Circuit found that Google’s use of the entirety of copyrighted images was fair use because 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, using the pictures for a game, requires that the entire image be used, and therefore this factor is given less weight.
- Effect on the Market
The last factor, the use’s effect on the market, is also one of the most difficult to analyze. Harm to the market for the original work is generally not enough to weigh against fair use, but rather, Courts are concerned about whether the use would “usurp” the market for the copyrighted work or alternatively, a derivative market that the creator would “in general develop or license others to develop.” Therefore, a court in this case would have to analyze whether the use of the images in this game has usurped a potential market from the images’ original creators. I think that this is where the crux of the dispute would lie. Although these the images in question are all over the Internet and thus this game’s harm to their market seems minimal, there is the argument that the original creators should be allowed to have the right to license the use of their images for use in products like “What DO You Meme?”
After looking over each factor, it seems plausible argument that even if the images used in the game were not licensed, that the transformative nature of the game would constitute fair use. However, it is also possible that simply using these images in a game would not be transformative enough for a court to deem it fair use or that the use inflicts too great a harm to the market, and therefore the use would be an infringement.
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).
Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006).
David G. Savage, “Supreme Court may be about to legalize sports betting in states that want it” Los Angeles Times (Decemer 4, 2017), http://www.latimes.com/politics/la-na-pol-court-sports-betting-20171204-story.html
Lorelei Laird, “Do memes violate copyright law?” ABA Journal (September 2015), http://www.abajournal.com/magazine/article/do_memes_violate_copyright_law
Maya Kosoff, “This Instagram User is Going Viral Without Taking Any of 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. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007)
https://whatdoyoumeme.com/pages/terms
https://whatdoyoumeme.com/pages/copyright.
https://www.kickstarter.com/projects/whatdoyoumeme/what-do-you-memetm