When we refer to Internet memes we are referring to an image, video or any form of media that is copied and spread rapidly by Internet users often with slight variations in a humourous manner.

The original “distracted boyfriend” image which is sold on the stock photography website ShutterStock at this link, has taken a life of its own as it has spread wildly over the Internet in recent months. The origin of the meme, according to Know Your Meme was an individual who – against all odds – took a dig at Phil Collins with Phil ogling pop music to his left while his partner – to his right (progressive rock) – expressed her dissatisfaction.

A nice and clean example of this meme, as it has evolved, is the tweet below:

Click here to view image.

The IP angle on this story is that almost all of the “distracted boyfriend memes” going around were not purchased from the ShutterStock platform and arguably infringe the copyright of the owner.

The excerpt below is from The Insider website:

Because people are taking the image from other websites to share the meme instead of buying it with a proper license from Shutterstock, it’s not making Guillem much money.

“Memes haven’t given any us any kind of economic profit because most of the images haven’t been sold on the microstock agencies,” Guillem said. “The sales that are related with the memes are probably a 0.00000% of our monthly revenue. It’s not relevant.”

IPLive purchased the licence to use the photograph as the featured image of this post and we made doubly sure that we weren’t violating any IP laws in the manner which we used the photo (we hope to have boosted Mr Guillem’s revenue projection of 0.00000%). As far as our understanding goes of the brief license agreement: as long as we credit the photograph as Antonio Guillem / Shutterstock and do not adapt the photograph so that it is used in a “pornographic, defamatory, or deceptive context, or in a manner that could be considered libelous, obscene, or illegal” then we should be above board as far as our license agreement is concerned.

All unauthorised reproductions of the image without the purchasing of the licence from Shutterstock potentially infringe Shutterstock’s copyright and Guillem had the following to say about this in The Guardian.

“It’s not allowed to use any image without purchasing the proper licence in any possible way, so each one of the people that use the images without the licence are doing it illegally. What really worries us and we are not going to allow it, taking the appropriate legal measures, is the use of the images in a pejorative, offensive or any way that can harm the models or me. I’m talking, for example, about the image where their faces are changed by a dog face, a garbage bag, and a dog food bag.”

Guillem’s argument is that the reproduction of the image is copyright infringement. However, internationally there are exceptions under copyright law which provide for “fair dealing” or “fair use” of copyright works which we will consider in our next post.

Do you think that the example below constitutes copyright infringement under South African law? Or does the “fair dealing” exception apply?

Email me at nicholas.rosslee@adamsadams.com and we will feature the best responses.