Success Kid: Copyright, Fair Use and Memes

Last week, the Eighth Circuit Court of Appeals upheld a jury verdict that found that using the “Success Kid” meme in a political advertisement was not a fair use.

The case was filed by Laney Griner, the mother of Sammy Grimer. In 2007, Laney photographed then-11-month-old Sammy pumping his fist while standing at the beach. The photo went on to be the “Success Kid” meme, widely shared on social media and meme-generation sites.

In 2020, as part of an unsuccessful bid to win the Republican primary, former Representative Steve King used the meme in a social media ad. This prompted Griner to file the lawsuit, alleging copyright infringement and a violation of Sammy’s publicity rights.

The jury ruled in favor of King’s campaign on the issue of publicity rights. However, on the issue of copyright, the jury found in favor of Grimer. The jury found that the ad was not fair use but only awarded Grimer $750 in damages, the statutory minimum.

The campaign appealed that decision, arguing that the jury had erred in its fair use analysis and that they had an implied license to use the image. However, the Eighth Circuit Court of Appeals upheld that jury verdict, including the damages amount.

So, what does this mean for memes? It depends on how you are using them.

Fair Use and Commercialized Memes

The Eighth Circuit examined the campaign’s use of the meme and how it applied to the four factors.

The first factor looks at the nature of the use of the work. As Eric Goldman noted in his commentary on the case, that has historically been an issue of how transformative the use is. However, following the recent Warhol ruling, the court looked more at the commercial nature of the use.

Since the meme literally read “FUND OUR MEMES!!!” there was not much arguing that the use wasn’t commercial. The court disregarded alterations made to the photo to produce the meme.

The defendant conceded the second factor, which examines whether the original work was published or unpublished. Regarding the third factor, which deals with the amount of the original work used, the court ruled that the campaign took the heart of the image, namely Sammy. As such, that factor favored the plaintiffs, according to the court.

Finally, on the last factor, which looks at the Impact on the market for the original work, the court found that it favored neither side.

As a result, the Appeals Court found that the fair use test strongly favored the plaintiff.

The result of this is pretty straightforward. The court finds that a noncommercial use of a meme is likely a fair use. However, a commercial use such as this likely isn’t.

That argument is bolstered by the fact that Laney Griner had previously licensed the photo to Coca-Cola and Microsoft for use in ads.

Ultimately, it’s a pretty clear ruling against the commercial use of memes. However, there is an elephant in the room that needs to be addressed.

The Issue of Damages

While the case is ultimately a victory for Laney Griner, it is, at best, a pyrrhic victory.

The issue is simple. The court only awarded Griner $750 in damages and no attorneys’ fees. The cost to bring and litigate this case far exceeded that amount, which means that Griner, or at least her attorneys, lost a great deal of money on this case.

As Goldman noted in his analysis, the Copyright Claims Board (CCB) might have been a better venue. However, the plaintiffs would have had to drop the personality rights claim.

On one hand, the court is sending a message that the commercial use of memes is not likely fair use. On the other hand, the court is sending the message that, even if it is an infringement, it’s not likely worth pursuing.

This makes this case a double-edged sword. While companies, political campaigns and others have to worry about memes being a copyright infringement, meme creators don’t really have much encouragement to sue over such uses.

It’s an outcome where nobody really wins.

Bottom Line

In the end, there are no real winners here. The Appeals Court ruling makes it clear that the meme was an infringement. However, the damages amount makes litigating such uses difficult to justify.

Perhaps the biggest victor here is those who create and share noncommercial memes. The ruling clearly affirms that such behavior is, most likely, fair use.

However, it makes the area of commercial memes much more murky. Companies won’t be comfortable moving forward (without a license), and meme creators won’t feel confident filing lawsuits.

It is interesting to see how the law around memes and copyright continues to evolve decades later, and it’s also interesting to see how the Warhol decision has impacted this space.

That said, there will likely be more litigation in this space, which should clarify the complicated tangle of issues at play.