Meme Copyright and Fair Use: The Basics (US)

This guide explains the basic ideas behind copyright and fair use as they apply to memes in the United States. It is general information, not legal advice. Laws differ by country, and how fair use applies always depends on the specific facts. If money, a business or a takedown notice is involved, talk to a lawyer.

The picture usually belongs to someone

Under US law, copyright protects an original creative work automatically as soon as it's fixed in some form. A photo is protected the moment it's taken. A frame from a movie or TV show belongs to whoever owns the film. A drawing belongs to the artist. Nobody has to register anything or add a © symbol for the protection to exist.

So when a meme uses a famous picture, the picture almost always has an owner, usually the photographer, a studio or an agency, even if the image has been shared millions of times. Wide circulation doesn't put a work in the public domain.

The caption you add is your own writing. Short phrases and slogans generally aren't protected by copyright on their own, though the combination of picture and text can be.

What fair use is

Fair use is a defense in US copyright law that allows some uses of a protected work without permission. It's written into the Copyright Act at 17 U.S.C. § 107, which names purposes such as criticism, comment, news reporting, teaching and research as examples.

Courts decide fair use case by case by weighing four factors:

1. The purpose and character of the use. Is it commercial, or is it commentary, parody or education? Does it add something new, with a different purpose from the original?
2. The nature of the original work. Using a highly creative work, like a film or an artistic photo, weighs a little more against fair use than using something mostly factual.
3. How much was used. Using a whole image is common in memes. It doesn't rule out fair use, but it doesn't help either.
4. The effect on the market for the original. Does the use replace a sale or a license the owner could otherwise have made?

No single factor decides the outcome. There is no safe number of seconds, pixels or percent. The U.S. Copyright Office's fair use page explains the factors and has an index of real court decisions you can browse.

How memes fit the factors

A typical personal meme, where someone adds a joke caption to a picture to comment on something and shares it without making money, tends to sit on the stronger side of the first and fourth factors. It's often commentary or humor with a different purpose from the original photo, and it isn't likely to replace a sale of that photo.

Parody gets particular attention. In Campbell v. Acuff-Rose Music (1994), the Supreme Court said a commercial parody can still be fair use, because parody needs to call up the original in order to comment on it. Many memes are closer to satire or general humor than to parody of the picture itself, and that distinction can matter.

The Supreme Court narrowed things in Andy Warhol Foundation v. Goldsmith (2023). It held that the first factor favored the photographer when a Warhol image based on her photo was licensed to a magazine for a purpose similar to the photo's original use. Adding a new look or meaning wasn't enough on its own once the use competed with the original commercially. For memes, the lesson is that "I changed it" is a weaker argument when the use is commercial and serves the same purpose as the original.

Where meme disputes usually come from

Personal sharing rarely ends up in court. The disputes that do arise tend to involve money:

• Brands using meme images in ads or on products. The owners of several famous meme pictures and characters have licensed them commercially and objected when companies used them without a deal. In 2018, a federal jury in California sided with the company behind Grumpy Cat in a dispute with a beverage maker over use that went beyond their agreement.
• Merchandise. Printing a meme picture on shirts, mugs or stickers to sell is a commercial use that directly touches the owner's market.
• Monetized content. A video or page earning ad revenue from someone else's images is in a weaker spot than a one-off post.

Not just copyright: people and logos

Two other areas of law come up with memes:

• Right of publicity. Many US states let people control commercial use of their name, face or likeness. Using an identifiable person's photo to advertise something can be a problem even if you own the copyright in the photo.
• Trademarks. Putting a company's logo in a meme is usually fine for commentary. Using it in a way that suggests the company endorses you, or on products you sell, is not.

Takedowns on platforms

Social platforms in the US generally follow the DMCA notice-and-takedown process. A copyright owner can send a notice, and the platform will usually remove the post. If you believe your use was fair, the process lets you file a counter-notice, but think before you do, since it can lead to a lawsuit. Platforms also have their own rules, and repeated notices can cost you an account.

How to make memes with fewer worries

• Use your own pictures. Photos you took, drawings you made and screenshots of your own work are yours. The Memetastic maker is built around this; it ships only blank layouts we made.
• Use text-only formats. A caption on a solid color or gradient has no third-party image in it at all.
• Use openly licensed images and follow their terms. Licenses like Creative Commons often require credit, and some forbid commercial use or changes.
• Keep business use clean. If you post for a company, use original or licensed images, and leave out identifiable strangers.
• Respond politely to complaints. If an owner asks you to take something down, the simplest path is usually to remove it.

Quick reference

Again, this table is a rough guide, not a legal judgment. Fair use depends on facts, and only a court can settle a real dispute.

Quick answers

Open the meme maker