As we explained previously in Meme 101, memes are an emerging form of expression in web culture that are easy to reproduce.

Can a meme be a work of art?

Every variation of the same meme requires at least some imagination. That’s why there are meme creators who argue that their creation is a work in its own right.

Their position seems very justifiable: entire art exhibits have even been devoted to memes.

However, the legal community hasn’t yet decided whether memes are protected under the Copyright Act.

Are memes original?

What’s tricky for the legal experts is that memes are based on an existing image or video that can potentially be remixed thousands of times.

When a meme is created, the original work and the idea behind it actually change very little. The meme’s creator appropriates and adapts an idea that was not their own.

Under the Act, a creation must be original in order to be considered a work. Skill and judgment must have been exercised by the author.

Can a derivative work be given status as an original if only a slight change was made to an image?

• •     See also: Tragedy revealed in copyright and image rights puzzle  

Copyright on the source material

It’s clear that the image, video or even the phrase behind a meme is indeed an original work, reflecting the skill and judgment of its author or creator.

Using the example of the Bernie Sanders photo wearing mittens at the presidential inauguration: the photographer holds the copyright on the original image. The rights to use that image were assigned to Getty Images, which issued licences to a wide range of users who wanted to reuse it.

However, it’s impossible for any company, even one as big as Getty Images, to make sure every online user complies with its licences and respects the copyright on the Bernie Sanders photo.  

Protecting content in the meme era

Isn't it problematic that an image can be used online by billions of users without being licensed?

The Copyright Act attempts to strike some kind of balance between the rights of creators and the freedom of expression of online users.

In the Act, this compromise takes the form of an exception referred to as “fair dealing.”

*Watch out! Fair dealing is a complex, unquantifiable concept that requires a case-by-case analysis according to the circumstances. It therefore can’t be translated into a one-size-fits-all policy.

In concrete terms, fair dealing limits authors’ rights to their works.

In light of that issue, the original work’s copyright owner is faced with the challenge of separating the wheat from the chaff: identifying who may be using the image for unacceptable purposes and deciding whether or not to take legal action.