If adding an Instagram border and a caption to an image is sufficiently “transformative” to render such a use fair, then every image of a post on Instagram is fair, and by extension, every image of a post on Facebook, or Twitter, or Reddit is fair.
This raises a legal question: can an artist destroy a work that he has already sold? And the answer is, maybe. To understand, let’s take a quick run around the principles of property.
HOW IT HAPPENS
So let’s say you took a photo of your kid looking disgusted at some broccoli. You think it’s funny so you post it to Facebook and get a reasonable number of likes from your friends. A few days pass. Then suddenly, you get several thousand likes. People you’ve never heard of start commenting. Captions are made for the photo. It starts showing up on Twitter, then Instagram. Before you know it, your kid and his broccoli have a page on knowyourmeme.com . Your photograph has gone viral - it’s become a meme. Mainstream news agencies (always the last on the scene) even begin reporting on the new meme, and your kid pops up on the 10’o’clock news.
WHAT CAN YOU DO?
You don’t want your child’s face plastered across the internet as visual shorthand for disgust. But the picture has been shared so many times, by so many people, across so many platforms. How could you possibly get every one of them taken down?
The short answer is that you can’t. Information, to quote the title of a Cory Doctorow book, wants to be free. Once any discrete bunch of data - including a photograph - is out there, there’s no pulling it back. This is one of the Rules of the Internet.
IT MAY BE FAIR USE
Furthermore, copyright law helps to enforce this particular Rule with a concept called fair use. Fair use is intended to make sure that artists and other creators are allowed to use otherwise copyrighted works as inspiration or material for their own works. Anyone can use your photo so long as they use it fairly. There are a number of fuzzy determinations that a court makes to determine what use of a copyrighted photo is fair, but in general if someone uses your photo in a way that a) doesn’t make them money, and b) genuinely transforms or significantly alters the basic message of the photo, then that use is fair. This means that most of the people sharing your kid’s meme are using the photo fairly. They aren’t trying to make money; they’re just sharing a meme. And they’ve significantly transformed the message behind the photo - when you posted it, it was meant as a picture of your child. When others post it, it’s meant as a statement about their own thoughts or reactions. This is especially true if they have captioned the photo. What’s more, your local news station is probably within its rights to publish the meme, because they are reporting it as news, and “newsworthy” items and images of “public interest” are always strong exceptions to copyright law and fall under the umbrella of fair use.
IS IT BEING USED FOR PROFIT?
However, you’re not totally out of options. Remember that using a photo fairly depends largely on whether you make money from it, and so anybody who uses your photo for profit is somebody you can sue. You probably can’t come after people who just post on their social media profiles, but you can come after anybody selling merchandise or copies of the meme in nearly any sense; you could potentially sue a website for posting the meme if they make significant profits from advertising, and at the very least you can send any website hosting the photo a DMCA takedown notice, telling them that you own the copyright and demanding they take it down.
You might wonder if you could at least get people to give you credit for taking the photo, even if you can’t make them take it down. The answer is less useful than you would think. If someone is improperly using your copyrighted photo, then of course you can demand they give you credit - but you could also demand they take it down altogether. However, if anyone is using your photo in a way that’s fair, then you can’t demand they do anything - copyright law doesn’t require that you give a copyright owner credit. (If, however, your viral image is a painting, sculpture, or a few other kinds of fine art, then you may have rights under the Visual Artists Rights Act to force people who display the image to give you proper credit.)
COPYRIGHT MAY NOT BE YOUR ONLY OPTION
But copyright law is not your only option. Depending on which state you live in, you may have state privacy laws that you can take advantage of; posting pictures of your minor child is arguably an invasion of your child’s privacy. Your success with this path may also depend on people’s commercial use, so beware: using a person’s image for advertising or promotion without their permission is probably unlawful, but just sharing a person’s image for fun, or even selling it as a work of art, is probably fine.
If something like this has happened to you, don’t be afraid to consult an attorney to explore your options, and don’t hesitate to encourage your attorney to be creative.
Originally published on November 16, 2017 in Rangefinder Magazine.