Memes, animated GIFs, and other images online are a crucial part of today’s Internet experience and have undoubtedly prompted many Internet users to laugh out loud in front of their screens. In the fashion industry, such images and animated pictures are frequently used to create an experience for the consumer and to evoke an emotion in connection with a certain product or brand.
These images or texts are also frequently shared, saved, or posted through a #regram on someone’s own page (be it their blog, Instagram, or Facebook) without considering copyright. However, a work being publicly available on the Internet does not mean that the work can be copied, re-blogged, or otherwise shared without consent of the creator or copyright holder. To claim the contrary is a common misconception: after all, the Internet is not free of rights and the risk of copyright infringement is a daily reality for the Internet user.
This post will discuss in more detail the European copyright protection of memes, animated GIFs, and other images online.
European copyright principles
As a rule, European copyright protection is mostly harmonized and reserved for works created by an author that meet the originality requirement. Although the Belgian Copyright Law Act makes an explicit reference to “literary and artistic works,” it does not define or enumerate specific types of works that are eligible for copyright protection. European copyright protection is reserved for any work that has been expressed in a concrete form (whether tangible or intangible).
This “expression in a concrete form” constitutes the first requirement for copyright protection. Ideas, concepts, or principles, even if they would be original or inventive, are not protected by copyright as they have not yet taken a concrete form. The second requirement for copyright protection is that the work must be “original.” This originality requirement means that the work is the author’s own intellectual creation and bears the author’s personal stamp. As soon as these two cumulative requirements are met, an author automatically, without any formal registration, enjoys exclusive copyrights for a period up to 70 years after their death.
European copyright consists of a patrimonial or economic component, and a personal or moral right of the author. The economic copyrights give the author the possibility to exploit his work (or have it exploited) to obtain income. More specifically, it is about the reproduction right (or the right to copy a work) and the right of communication to the public. These rights are also transferable. On the other hand, an author also has inalienable moral rights, such as the right to divulgation (the right to publish a work for the first time), the paternity right (the right to recognition), and the integrity right (the right to oppose change in his or her work).
What about memes and GIFs?
Many forms of expression can enjoy European copyright protection. As applied to memes, GIFs, and more generally to images or photos on the Internet, the originality requirement will nearly always be met. Certainly when the photo is the result of the creativity of the photographer who has made a number of free choices such as shooting angle or lighting, it will be an original work. While the copyright sign © that is often displayed underneath a photo adds little extra protection under Belgian or European law, it indicates that a certain person is claiming rights with regard to that photo.
With memes and GIFs there is little doubt about the originality when it concerns the original work. The fact that a copyright on these approved images, texts, and animations is likely reinforced by the fact that Grumpy Cat (or rather its cat parent) has already won a copyright infringement case in the United States (United States District Court, Central District of California Southern Division, Grumpy Cat Limited/Grenade Beverage LLC, et al., 1 December 2017, Case no. SA CV 15-2063-DOC (DFMx)). The creator of Pepe the Frog has also successfully challenged the copying of his frog meme through other media several times.
Image rights can also play a role. This personality right protects the use of a person’s image. Based on this right, any physical person can oppose the creation and use of images in which he or she is recognizable. This protection also applies to famous or public persons, albeit that in those cases it is generally limited to the financial element involved in the exploitation of their image.
Explicit consent is of course also required for the use of images of lesser known people (like you and me perhaps). For example, Arató András, better known as ‘hide the pain Harold’ and Laina Morris, the ‘overly attached girlfriend,’ suddenly saw their images appear as the subject matter of a meme.
The success of social media such as Facebook, Twitter, and Instagram has brought new IP issues to the foreground. However, the possibility and practice of sharing photos, articles, or videos – often protected by copyright – on social media at a rapid pace and with incredible ease, may carry a significant risk of infringement of both copyright and personality rights.
Therefore, before an image is shared online, retweeted, or placed online via a blog or #regram, it is best to first check whether the work is original and can therefore be protected by copyright. If the answer to this question is yes, the author or copyright holder’s consent must be sought for the copying or distribution of the work or for the processing thereof into a meme or GIF. In addition, the persons depicted and identifiable must also have given their consent for the use and further distribution of their photographs. It is very important to respect the copyrights of the parties involved, especially when these images are used for commercial purposes. It is also important that the photographer or designer and the model have transferred all intellectual property rights by means of a written agreement.
This post originally appeared in FashionUnited.