Have something witty to say on the Internet? Chances are you’ve headed over to one of the many meme maker sites on the web and typed in a few lines of wit, saved it, and posted it on your blog or social media. All good, right? Not so fast…A German blog was forced to pay 785€ to Getty Images to use Socially Awkward Penguin meme.Click To Tweet
A German geek site, Geeksisters, recently paid out 785.40€ (approximately $875USD) to Getty Images after receiving a letter from the stock photo company requesting Geeksisters pay licensing fees for one of the images they were using on the site. The image in question was the popular “Socially Awkward Penguin” meme, one that has been around since May 2009. As it turns out, the penguin used in the meme was taken cut out from an original Getty Images photo by photographer George F. Mobley. We’d post a comparison here, but you know, we’re not fond of dangling a carrot in front of Getty Images and taking the chance we’d get sued as well.
GetDigital, owner of Geeksisters goes on to say:
But the Awkward Penguin is not just a random image we stole from Getty’s database, but one of the most well known internet memes. Therefore the question arises why obviously no one in the whole internet knows that the image right of this penguin are property of a picture agency that sends out bills for the usage of this image. Although it is possible to find information about the photographer of the penguin, it is impossible to find anything about Getty and their license payment claims.
What’s more troubling though is that on top of requesting the licensing fee, which turns out to be almost double the 308€ the Getty Images licensing calculator says is required to use the image for three years on a commercial site, is that Getty Images tried to impose a gag order on the agreement.
Since the legal situation appeared quite clear we agreed on paying the amount claimed and of course we deleted the images. As a result Getty pointed out that we were obliged to maintain silence about this case otherwise their lawyers would take over.
Of course GetDigital refused and posted about the exchange with Getty Images.
Getty Images is well within their rights to collect licensing fees and told Daily Dot:
“We believe in protecting copyright and the livelihoods of photographers and other artists who rely on licensing to earn a living and fund the creation of new works,” a Getty spokesperson wrote. “Getty Images has an immense responsibility to the 200,000+ artists we work with to ensure that their work is properly licensed when used by commercial entities. Bear in mind that many artists themselves are small businesses, and are entitled to be paid for their work.”
As a photographer I’m a big fan of copyright protection, and while Getty Image has the right to request and collect licensing fees for images used from their site, going the extra step and trying to impose a gag order on the site after they paid the fee seems a bit excessive. Who knows how many other blogs and websites have been forced to pay up for using this — and potentially other memes — and haven’t said anything due to Getty Images’ terms.
We’re not lawyers here by any stretch of the imagination, but the legal website Inside Counsel has this to say about the use of photos and videos in memes:
Do memes count as fair use or are they examples of copyright violation?Click To Tweet
The “fair use” doctrine provides a defense to a claim of copyright infringement. The Copyright Act lists four factors to determine whether a use of a copyright work is fair, none of which is determinative: the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for, or value of, the copyrighted work.
As opposed to Internet memes created by fans, individuals, etc., a meme that a company creates and distributes for marketing purposes has a commercial purpose, which weighs against fair use. If the nature of the copyrighted work is more factual and topical (e.g., a picture of a historical figure), rather than something more creative (e.g., a clip from a motion picture), this will favor fair use. If the meme includes a short clip from a longer film, the amount and substantiality of the use factor will favor fair use; however, this may not be the same when the meme consists of a single photograph.
The Geeksisters website was using the “Socially Awkward Penguin” meme in a post about, well the meme itself. Does this count as fair use or commercial purpose? Most blogs are run for fun and likely barely break even if at all. Sure, posting about popular geek culture drives traffic which in turn may provide clicks to ads which provide revenue which in turn is used to support and run the site, but in this case it doesn’t appear that the meme was used to market the Geeksisters website.
Most companies do seem to let it slide as the proliferation of sharing of certain memes does draw attention to the specific movie, comic, or other source the meme’s main image is taken from — although just because we haven’t heard of lawsuits, it doesn’t mean they haven’t happened and are under a similar gag order as Getty Images tries to impose.
On a positive note, GetDigital has created a NEW “Socially Awkward Penguin” meme that you can use free of copyright restriction. Online generators are available for the Awesome, Awkward and even a hybrid version.
What do you think about the entire situation? Should GetDigital have paid up? Let us know what you think in the comments below, or on Google+, Facebook, or Twitter.