“Success Kid” is an internet meme based on a photograph Laney Griner took of her 11-month-old son, Sam, trying to eat sand. She uploaded the photo to Flickr in 2007, and it quickly went viral. In addition to widespread use as a meme on social media, the photo has been licensed for commercial use by numerous companies, including Coca-Cola, Virgin Mobil, and Microsoft.
In January 2020, the King for Congress Committee posted a version of the Success Kid meme requesting donations for the reelection campaign of Steve King, then a US representative.
Neither King nor his campaign committee obtained Griner’s permission to do so. She asked him and his campaign committee to remove the posts and suggested a settlement for the past unauthorized uses.
Steve King campaign post using Success Kid meme
No settlement was reached, and Griner filed a lawsuit for copyright infringement and violation of her son’s right to privacy.
At trial, the jury concluded that the use of the meme didn’t violate Sam Griner’s privacy, but it did find that the campaign committee had “innocently” infringed Griner’s copyright.
The jury awarded Griner $750 in damages, and the committee appealed, arguing that its posting of the Success Kid meme was fair use of the Success Kid meme template and that it had an implied license to use the Success Kid meme.
The US Court of Appeals for the Eighth Circuit disagreed with the committee’s position, ruling that the committee had conceded at trial that no colorable argument could be made for an implied license and that the posts at issue were not fair use of Griner’s photo.
The appellate court noted that “memes used commercially in advertising or fundraising are subject to stricter copyright standards than memes used noncommercially, which are often fair use.”
The court went on to say that because the committee’s use of the meme was commercial, a “particularly compelling justification is needed.” The committee’s “stated justification” was that it created and disseminated a meme on social media as happens every day.
The court responded to that argument in much the same way a parent might respond to the “everybody else is doing it” argument, stating that the fact that everyone else is doing it “is not a particularly compelling justification.”
What Does This Case Mean for You?
The most obvious take-away is that you should not use any meme for commercial purposes unless you have consent to do so. That consent may be in the form of a Creative Commons license or a license from a stock media agency, or you might need to contact the copyright owner directly to negotiate a license.
What if you’re not using the meme for commercial purposes, though? If you were reading carefully, you noticed that the court said noncommercial uses of memes are “often” fair use. In other words, not all noncommercial uses are considered fair.
This means that while you’re probably safe using memes to express yourself in a noncommercial manner, there are no guaranteed safe uses of a meme unless you either created the image used in the meme yourself or obtained permission from the copyright owner to use the meme.
Please feel free to contact us if you have any questions about copyright registration, protection, or infringement.
Success Kid photo by Laney Griner; meme created at Imgflip.
