Meme Law Alert! Meme Use In Political Ad Isn’t Fair Use–Griner v. King

The plaintiff in this case owns the copyright to the well-known “Success Kid” meme, a photo of a cute 11-month old boy named Sam. The defendants are former Rep. Steve King and his reelection campaign committee. Wikipedia calls King “far-right,” which is typically a euphemism for a person who holds terrible views. For example, in 2018, the Washington Post described King as “the Congressman most openly affiliated with white nationalism.” How extreme were King’s positions? At the height of the Trump era, the Republican Party cut him off, first from fundraising support and then from House committee assignments. If you’re too “white nationalist” for the Republican party circa-2020, what are you really? Former Rep. King got primaried in 2020.

The Meme Usage

As part of his 2020 reelection campaign, King’s team posted the following to Facebook. “The Defendants never sought or received permission to use the Success Kid template.”

(Sharp-eyed readers may notice that the Success Kid image was cropped. The meme’s background is a beach, not the Capitol building).

The King team wanted to “trigger the Lefties,” but instead they triggered a copyright plaintiff. Talk about taking a wrong turn. Also, memes don’t cost a thing a make, and Former Rep. King didn’t need either fundraising or a Congressional seat to keep manufacturing them. However, I don’t have the stomach to see if he’s still making memes.

(Also, if your main political sales pitch is to “trigger the Lefties,” I wonder about your commitment to actually help build your community and fairly represent all of your constituents 🤷‍♂️).

The Lower Court Proceedings

The court summarized the lower court outcome:

the jury found that neither the Congressman nor the Committee were liable for an invasion of Sam’s privacy, that the Congressman had not infringed Griner’s copyright, but that the Committee had innocently infringed the copyright—awarding $750 in damages, the statutory minimum. Both parties sought costs and attorney’s fees. The district court denied all attorney’s fees but granted-in-part and denied-in-part the motions for costs.

Note that the minimum statutory damages for innocent infringement is $200 per infringement, not $750. However, it appears the defense attorneys mishandled the jury instructions on this point.

Fair Use

The main issue on appeal is the committee’s fair use defense.

Nature of Use. The court hews closely to Warhol, for better or (more likely) worse. “Memes used commercially in advertising or fundraising are subject to stricter copyright standards than memes used noncommercially, which are often fair use” (cite to Campbell for general presumption against fair use for advertising).

The court weighs the first factor for the plaintiff:

As for commerciality, it is undisputed that the Committee’s use was purely commercial—the meme solicited campaign donations with its call to “FUND OUR MEMES!!!” The Committee sought to exploit the copyrighted material, for financial gain, without paying the customary price….

The Committee, by creating and disseminating a meme, did not add a further purpose or different character to Success Kid template…

The Committee’s stated justification is that they were creating and disseminating a meme on social media, as happens millions (if not billions) of times each day. “[T]he fact that everyone else is doing it” is not a particularly compelling justification, especially considering the vast majority of these uses are non-commercial.

The “everyone is doing it” defense rarely succeeds in court, although meme usage is probably one of its most favorable scenarios for that defense to work.

The court disregards the photo cropping, the new Capitol background, and the “fund our memes” headline in considering how much King’s team transformed the work.

Nature of Work. The defendant conceded the second factor.

Amount Taken. The defendant took the heart of the work (Sam’s image).

Market Effect. This factor weighed in favor of neither party:

it is difficult to determine what impact the Committee’s use of the Success Kid template had on its commerciality. True, Griner licensed the use of the template to many well-known brands. Licensing requests, however, had decreased before the Committee’s use, although a reasonable jury could conclude that association with King would drive away some potential licensees. There is no evidence that the Committee’s meme revitalized the market for licensing the Success Kid template

The last sentence is a little odd because the fourth factor can still weigh against defendants even if they show that they provided promotional value to the copyright owner.

The outcome of the Warhol-infused anlaysis: “the fair use test weighs heavily for Griner.”

Other Issues

The court didn’t award attorneys’ fees to either side. The committee nonetheless requested attorneys’ fees because the jury damages award was below the Rule 68 offer of judgment. The court says that the committee can’t get attorneys’ fees per 17 USC 505 because those can only be awarded to a “prevailing party,” and the committee didn’t prevail.

The 505/Rule 68 interplay has confused me for a long time. I need some help from readers. Rule 68(d) says “If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.” So the committee may not be entitled to a 505 fee shift, but per Rule 68 they should have gotten their post-offer attorneys’ fees, no?

King as an individual defendant prevailed in the jury ruling, but he doesn’t get a 505 fee shift either because the lower court had the discretion not to award it.

Implications

Memes and Copyright Law. This ruling articulates a simple rule of law: meme usage for noncommercial purposes is likely fair use, while meme usage in ads isn’t. Another example of advertising exceptionalism.

Note what this would mean in practice. The copyright owner of a meme wouldn’t be able to control noncommercial associations of the meme, even if unwanted. (It reminds me a little of how singers and songwriters can’t stop politicians from coopting their songs). So if a “white nationalist” like King wants to invoke the Success Kid meme to advance his (offensive) political views, have at it. This creates a counterintuitive result in copyright law: if a work becomes so popular that it becomes a “meme,” its enforceability has decreased from its starting point.

Aren’t Memes Always Transformative? By definition, every use of a meme iterates on its meaning. Here, King’s use of the “Success Kid” invoked meaning in the political fundraising context that differed from other invocations of the meme. Thus, memes accrete and mutate with every usage. The Warhol case probably makes arguments like this impossible.

What About Publicity Rights? It seems like Sam’s publicity rights claim was not lightweight. See our casebook chapter on political advertising.

Who Won? Griner won the jury trial and the appeal, but the damages award of $750 without attorneys’ fees probably makes this litigation a major financial loss to both sides. In other words, I don’t think this decision will cause either litigant to send Success Kid memes to the other side. It makes me wonder if Griner cared more about winning in court than getting paid?

(For another recent example of an appellate court ruling involving de minimus economic stakes, see the Fourth Circuit’s Philpot ruling).

Given the ultimately low stakes of the outcome, I also wonder if this case would have been better processed in the CCB…? (But the publicity rights claim would have had to be dropped to do that).

Case Citation: Griner v. King, No. 22-3623 (8th Cir. June 7, 2024)