Posting a cringeworthy meme can often cost you a few Facebook friends. But what if the next meme you post costs you almost $900?

German blog Geeksisters found out the hard way when Getty Images asked them to pay €785.40 in back licensing fees for posting the famous Socially Awkward Penguin meme to their website. (Ironically, the offending blog entry is about how the penguin is the writer’s favourite meme, and how great the internet is. Someone should direct them to Bad Luck Brian.)

For those who don’t know the meme, Socially Awkward Penguin is a picture of a very cute, awkwardly-posed penguin placed on a blue background, with captions describing uncomfortable social situations like, “Says goodbye… walks same way”.

The problem is that the original photograph that Socially Awkward Penguin is from was taken by George F Mobley for National Geographic, and is available for licencing on Getty. According to Getty’s licence fee calculator, it would cost us $465 to use the image on our blog – a pretty big payday for Pingu.

While Geeksisters were the first to spill the beans about the request (Getty asked them not to disclose the matter – awkward), they were not the first website to pay up, with Getty reportedly settling multiple infringement cases involving other websites who have posted the meme.

While the Internet may think this is a Scumbag Steve move, this isn’t the only instance of copyright claims for memes. We’ve previously written about the creators of Nyan Cat and Keyboard Cat suing Warner Bros for using their meme, and Know Your Meme have even dedicated a whole page to the cease and desist notices they’ve received.

Not sure if fair use or infringement…

Many memes are simply repurposed images, like Socially Awkward Penguin, which would likely amount to substantial reproductions of copyrighted works if they were not altered or added to in some way. So is posting a meme copyright infringement?

In Australia, meme-makers may be able to claim that their use of the image is ‘fair dealing’, which provides a defence to infringement claims for the “fair” dealing with copyrighted works for a number of select purposes. Most relevantly, section 41A of the Copyright Act states that a fair dealing with a copyrighted work will not be infringement if it is “for the purpose of parody or satire”.

Courts look at the following factors to determine whether or not a use or dealing is “fair”:

  • how much of the work has been taken;
  • how much the person has added; and
  • whether the taking is for a rival commercial purpose.

There may be an issue if the meme is used for a commercial purpose. However, given that memes impose original text on top of a common image, often resulting in the image being used in a different context than it was originally created for, in a different market and for non-commercial use, this maybe seen as enough to constitute the dealing as “fair”.

But to avail itself of the defence, the meme must be for the purpose of “parody or satire”. The fact that it is humorous may not be sufficient. There is no set definition for either term in the Act, but under US case law, parody usually involves ridicule of the material itself, while satire uses the material to make a general point through irony, derision or wit. So for Socially Awkward Penguin, it might be arguable that it is satire, with the awkward stance of the penguin being used to comment on the difficulties people have in navigating their way through social situations. Who said memes can’t be deep?

However, the parody/satire defence has yet to be tested in Australian courts, so it is hard to know what approach courts would take with memes. Or as the Internet might say, ¯\_(ツ)_/¯.

To post or not to post?

Given Getty’s stance on the use of their image, it might be best to hold off on posting their penguin if you want to avoid any awkward encounters with their legal team.

Things might be clearer if Australia moves its Happy Feet and introduces a broad ‘fair use’ defence like in the US, as recommended by the Australian Law Reform Commission. This would only require the person to prove that the use was fair, taking into account a list of factors, without needing it to fall under one of the current prescribed purposes.  However, it would remain to be seen whether the Australian courts would apply US case law (which protects parody, but not satire) or develop its own application of “fair use”.

Until then, if you have any socially awkward situations that you need to immortalise in meme form, GetDigital (the owners of Geeksisters) have made a public domain version of the meme that is free to use. Their tongue-in-cheek example:

Click here to view the image.