Imagine for a moment that you’re a regular person going about your day. As you’re leaving the grocery store, your friends and family start furiously texting and calling, telling you you're all over the internet. In a panic, you hastily open your Facebook app and the very first thing you see is your own face staring back at you.
No you’re not dead. You’re a meme! Along with half a dozen other women, you’ve become part of the “tag yourself as a suburban white mom” meme that’s sweeping the nation (apparently). Under your face is a name that isn’t yours and a description of you as a type of mother that couldn’t be further from the truth. You rack your brain to try and remember if you’d given anyone permission to use this photo of you, but you come up empty. With every second that passes, more and more people share the meme. It’s already at a hundred thousand likes and counting.
“Well what the hell am I supposed to do about this?” you ask.
If you’ve visited Tumblr or Buzzfeed or Twitter or Facebook anytime in the last year, you’ve probably seen this meme. I know I did. In fact, after reading it I decided I was probably a “Carol.” Then I found out that not only did these women not give their permission to be a part of the meme, but the photos weren’t authorized either. Shannon Gurnee, the woman labeled as “Pam” in the post, wrote on her blog that:
As a blogger and active user of social media, I would love to have a picture go viral. However, with that would be credit going to me, right? Not in this case. Not only was my picture stolen, it was put into a meme that people actually think is funny. Guess what? These are REAL women!!! Not just stock images!! I spoke with a few of the bloggers on here and neither of them gave permission to have their photos used either.
As a friend said, “This meme is insulting and it’s using images of women without their permission. These are ACTUAL moms who are a lot more than the single-dimensional punchlines portrayed here. If the creator felt so strongly about making fun of parents, he or she should have leveraged stock photos instead of swiping pics from blogs.” Well said and true to the point!!!
Another blogger, Shannon White or “Jillian”wrote:
I am a blogger, a Presbyterian Pastor currently leading a large congregation, an author of books, a national speaker, and a former TV News reporter. I have one child — not 50. While many young girls and women may say, ‘wow I want to be her,’ not one of the responses has been to want to be Jillian. Why is that? The tongue-in-cheek meme of a woman having 50 children, and most certainly needing and deserving a nap. If that’s the case, should be honored. Women who have multiple children should not be made fun of as something women do not want to aspire to.
I don't know who created the meme. I don't know if they're an artist or not, but I'm aiming this at all the artists out there anyway because there's something fundamentally appealing to artists about having something you created become part of the social zeitgeist, even if only for a little while. You get a little juice and maybe that turns into bigger opportunities for you. I'm all for that. But because of the way the internet works, it's super easy to take something that isn't yours and reappropriate it without even thinking. Add to that peoples' misunderstanding of fair use, and you get a perfect storm of legal woes like...
It doesn't matter where the photo came from, if you use someone else's photo without their permission, that's copyright infringement. And if they sue you, you can be liable for anywhere between $750 and $150,000 for each photo you used, as well as injunctive relief (i.e. you have to take down the original post), and attorney costs. The severity of the financial punishment will hinge largely on factors like the way you used the photos, your intentions in using them, and the damage caused to the owners.
And I hate to burst your bubble, but even if you give credit or don't make money from it, fair use may not save you. There are four key factors that must all be weighed against each other for fair use to apply:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes (What is your intended use of the original work? Profit? Parody? Education and criticism? Has your use transformed the expression or meaning of the original work? Profit is generally frowned upon, but parody, education, and news reporting/criticism are more likely to be given fair use protection).
- The nature of the copyrighted work (Is the original work published or unpublished? Fiction or Non-fiction? Fair use is generally more applicable if the work is non-fictional or published).
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole (How much of the original work are you using? All of it? Some of it? The less you use, the more likely you can assert fair use).
- The effect of the use upon the potential market for or value of the copyrighted work (Does your use deprive the copyright owner of income or undermine a new or potential market for the copyrighted work? Basically, if your use can take money out of the copyright owner's pocket, even if you're not using it for your own personal financial gain, then that's infringement).
Every case is different and fact-specific, but I would never counsel a client to use someone else's IP without the approval of the owner and I say the same thing to you here. You MAY get a fair use ruling in your favor, but you also may have to shell out thousands of dollars to repay the damage you did to someone's reputation because you used her photo in a fast-spreading meme without her permission. Why risk it?
Publicity or personality rights are the rights of an individual to control the commercial use of his or her name, image, likeness, or other aspects of his or her identity. While this kind of thing is typically assumed to only apply to celebrities, it actually applies to everyone. We all have the right to control how our image and identity is used to the outside world, and if you take that without permission, we have the right to sue you for financial and injunctive relief. You could even be guilty of a criminal misdemeanor, depending on the state. Seventeen states, including California and New York, have laws that prevent the unauthorized use of someone's likeness, while fifteen states protect those rights through common law (in some states, this is referred to as "appropriation of likeness," which is considered one of four privacy rights).
The problem with publicity rights - especially as they pertain to celebrities - is that there's a lack of bright line rules governing their boundaries. What's considered a violation may differ from case to case and is highly fact-specific. For example, in 2004, Motley Crue bassist Nikki Sixx sued the Vans Shoe Company for using a photo of him at Vans' "skater of the year" ceremony in one of their ads. Because they didn't have his permission, the court agreed with Sixx and awarded him more than $600,000. As this article points out, there's been a wide variety of cases that play with the boundaries:
In a 1985 case, Woody Allen sued over a look-alike in a commercial; Bette Midler later sued over a sound-alike in a commercial; Vanna White brought a VCR manufacturer to court in 1991 after it depicted in a commercial a futuristic Wheel of Fortune host as a robot in a blond wig; in 1993 the actors who played Norm and Cliff in Cheers sued Paramount Pictures for licensing look-alike robots at airport bars around the world; in 2001, the estate of the Three Stooges won a suit filed against a celebrity lithographer for depicting them as “art” on T-shirts; and in 2007, Major League Baseball lost a suit against a provider of fantasy sports games over the use of names and statistics of its ballplayers.
In other words, no one really knows how far you have to go before you've infringed someone's right of publicity. The lack of boundaries can mean even the slightest infringement can cost you, no matter how harmless you intended to be or thought your meme was. While it's hard to predict how a case like "suburban white moms" would play out, especially since the women featured aren't famous, I'm pretty confident the case would resolve in the moms' favor. When you use someone's likeness without their permission, that's an intimate violation, and people, rightfully, tend not to treat it lightly.
If you injure someone's image badly enough, you could be guilty of defamation, a false statement made to at least one other person that is designed to harm another's reputation.
Both women quoted above saw the meme as offensive and potentially harmful to their reputations. And while the furor over the meme is already dying down, who knows how long that damage could last? Remember, just because you may not think your use of someone's likeness is harmful doesn't mean they don't. The nature of their work, peer groups, and business clientele will dictate the standards by which they determine how badly their rights have been infringed.
The damages associated with defamation are governed at the state level and can vary widely, but a judge would look at any lost earnings, lost business opportunities caused by the defamation, and any emotional pain and suffering by the plaintiff, among other things. In 2012, a jury awarded a Texas couple $13 million against anonymous commenters on an internet forum who accused them of being child molesters and drug dealers. While I doubt the "suburban white moms" would get such a large jury award, in this climate where privacy rights are almost daily in the news, you never know.
Anytime a client or prospective client comes to me and asks how to protect their work online, I tell them that having their stuff infringed is basically a statistical certainty, so they should be careful and selective about what they post. I don't say that to worry them, I say it to get them to understand that the reality of the internet. It's easy to have your IP and identity stolen. Most people don't do it maliciously, but they do it. If you did it to someone else, it's not unlikely that it'll happen to you. The temptation to take something that isn't yours is easy. Don't give in to that temptation. If you play with matches, eventually you'll get burned.
I believe in karma, so remember friends: think before you meme!