First World Problems: A Fair Use Analysis of Internet Memes

Abstract

The phenomenon of Internet memes — pictures with juxtaposed text that replicated by derivative authors to the point where the pictures transcend the importance of the original posting and its underlying work — has become a pervasive component of mass Internet culture. Yet, there is little legal scholarship on the subject. This Article seeks to fill that void — or at least, a small part of it — by exploring whether or not an Internet meme could survive an action for copyright infringement by asserting a fair use defense. To that end, this Article considers what Internet memes are and compares them to “actual” memes, as the term was originally conceived in Richard Dawkins’ The Selfish Gene. Positing that Internet memes share many characteristics with actual memes as described by Dawkins, the Article goes on to show how those memes serve the functions of the theoretical concepts that ground the fair use defense (namely, cultural interchange, market failure, and productive consumption). The Article ultimately argues that a meme user will likely prevail if he asserts the fair use defense.

Keywords: Copyright, Copyrights, Fair Use, Fair Use Defense, Fair Use Analysis, Internet Memes, Social Media, Technology, Arts, Entertainment, Internet