Social media law: Memes

Gowlessence: the insider view into the legal side of the influencer marketing industry

01 Mai 2019

Meet Gowlessence, the latest beauty brand to pop up on your social media feed. Gowlessence produces cleansers, creams and serums that its customers swear make them look good on the outside, while also making them feel good on the inside. Gowlessence's demographic is millennials that justify their indulgence on "self-care" by investing in Gowlessence's promise of organic, cruelty-free products and lifestyle.



Gowlessence's advertising campaign for its new Self-Care Serum is still being devised. The majority of Gowlessence's sales in the previous year came from "click-throughs" and "swipe-ups" on its Instagram; following this success, the brand decides to invest heavily in posting like-worthy content. Gowlessence's marketing team come up with a three-pronged plan to deliver a beautifully curated profile to attract maximum sales.

Gowlessence intends to use reposted content that: (1) it's found on the internet, including other Instagram accounts (e.g. a "Winning Baby" meme congratulating itself on removing its makeup after a night out); (2) has been created by its followers (e.g. a happy customer glowing as a result of Gowlessence products); and (3) Gowlessence has paid its influencers to produce. This series of three articles will examine the challenges for brands running campaigns involving user-generated content.

Copyright in memes

Gowlessence's digital marketing team love posting memes. It's a way to humanise the brand, make it relatable, and show its followers that it has a sense of humour. Considering that most memes are derived from pre-existing works, Gowlessence wonders if its meme-posting violates the copyright of the authors of the original works. There are four categories of memes which Gowlessence uses on its page: viral pictures (such as Math Lady), viral videos (such as Baby Shark), GIFs (such as Shaq Shimmy) and screen captures of films/tv shows (such as pretty much any line from 30 Rock) - and as they all stem from original works, they all attract copyright.

Infringement

Re-posting a meme doesn't necessarily amount to automatic infringement, as the UK provides an exception to copyright "for the purposes of caricature, parody or pastiche". This means that, theoretically, Gowlessence can (by re-posting memes) create parodies that re-use works protected by copyright without having to obtain permission from rightsholders - so long as such memes aren't posted for commercial purposes.

Fair dealing in the UK

The use of copyright works for parody is only allowed insofar as it can be considered "fair dealing". The test for "fair dealing" isn't binary, as it requires not only that any copying doesn't impact the rightsholder, but also that copying can only be done as much as is necessary for its purpose. As this test is subjective, it's not clear where the line for infringement is, as any copying (meme reposting) will come down to whether a substantial part of the work has been used.

"Substantiality"

One instance of case law from the UK, though not setting out a definitive test for measuring substantial copying, has outlined "substantial" as "determined by its quality rather than its quantity". Another instance has described the test as an assessment of the importance of the copied work - if an important part of a work is reproduced, the more likely that infringement has arisen, because a substantial part has been copied.

When it comes to the copying and distribution of the entirety of a work, such as a viral video or photograph, assessing infringement is more conclusive. However, with GIFs and film/tv screen captures, which often feature just a "snapshot" of a moment, it's more difficult to assert that "substantial copying" has taken place. Where the oft-used GIF of Shaquille O'Neill shimmying may well constitute a substantial part of the original advert from which it was taken, re-posting a screenshot of Liz Lemon from 30 Rock walking into a room and saying something pithy may not be a significant part of the episode from which it was taken - suggesting that copying the moment alone may not be substantial.

Fair dealing in the UAE

There is no explicit exception covering "fair dealing" in the UAE, nor is there one for parody. Where Gowlessence wants to post from its @GowlessenceUAE account, it should be aware that this area of the law is even less clear-cut than in the UK. The relevant copyright law does, however, provide that an author cannot prohibit a third party from using a "derivation…of the work for the purpose of criticism, discussion, or information". While this may leave the door open for @GowlessenceUAE to re-post memes, this exception is qualified by the fact that use of the author's work must be accompanied by the source and the author's name. Due to the difficulty in ascertaining the original owner of a meme, it may be more practical for @GowlessenceUAE to avoid memes on its page altogether.

Meme ban

If meme-posting in the UK previously left Gowlessence without fear of legal repercussions, then the EU (Brexit aside) may change that. In 2019, the EU signed off on an unpopular new copyright directive. This envisages the implementation of "content recognition technologies" to identify and remove infringing material - just like YouTube's ContentID system, but for the whole internet.

The directive requires that websites regulate copyrighted material that may feature on their platforms. This would place websites in a more active role, removing them as "mere conduits" and requiring them to "police" content posted. While this would make meme-hosting more onerous for websites and meme-posting more precarious for users, the law could be a chance for content producers to get the rights, money and recognition they are owed under copyright laws.

Next steps

Gowlessence is currently not worried about its meme-posting. When posting memes, in an ideal world, Gowlessence would get permission from the original content owner. Nonetheless, this is a near-impossible arduous task, as it's difficult to follow the chain of "meme-ownership" (as the meme will have probably bounced around Reddit and Tumblr before hitting Instagram and eventually making it to Gowlessence's feed). Instead, Gowlessence intends to continue posting memes with reliance on the "fair-dealing" defence. As for the new directive coming from the EU, the effect of the legislation brings a shift in responsibility and accountability - there's a low risk of Gowlessence being sued for re-posting a meme of a cat playing the piano, but rather it is the platforms on which the content is uploaded that will be concerned.

Furthermore, unless technology learns to identify humour, mockery and satire, there'll need to be a degree of human judgement involved in enacting the law's obligations - to ensure that content recognition solutions are proportionate and fair to both the copyright owner and the meme-poster. This means that while the new legislation poses a threat to memes, the varying success of YouTube's Content ID solution suggests that the relevant technology simply isn't available just yet.

Check out our previous instalments on the ownership of social media content:


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