It is likely no surprise to regular readers of Socially Aware that posting content to social media can, in some cases, generate significant income. But those who make their living on social media may find their livelihood threatened if they fail to comply with the law and with the relevant platform’s terms of use.

For example, we often see trouble arise when social media users fail to follow the Federal Trade Commission’s disclosure rules in connection with receiving compensation in exchange for a promotional post, or when users purchase followers—a practice that violates most social media platforms’ terms of use, and might be illegal. As we have noted previously, the social media platform and not the user sets the rules. If your business model is built on a social media platform, you have play by the platform’s rules.

Earning an honest living is what Instagram user “Ben” (the pseudonym assigned to him by MarketWatch) claims to have been doing when he was taking in approximately $4,000 per month by operating and curating several accounts containing memes originally created by third parties. (For those who have somehow managed to avoid this ubiquitous Internet phenomenon, Wikipedia describes a meme as a “piece of media that spreads, often . . . for humorous purposes, from person to person via the Internet.” The article at this link contains some examples.)

One of Ben’s accounts had more than 500,000 followers who, apparently, enjoyed the memes that Ben found on the Web and selected for reposting on Instagram. Ben leveraged that following by advertising other users’ pages on his account. But one day in July 2019, Ben’s cash flow dried up when Instagram banned his meme accounts and many similar accounts because, according to Instagram, those accounts violated the platform’s terms of use by—among other transgressions—posting memes without authorization from the original creators of that content.

Then, in early August 2019, Instagram changed course, attempting to smooth things over with the increasingly influential meme community by announcing its intention to hire a strategic-partnerships manager dedicated to meme accounts—a “meme liaison” of sorts.

One of the issues the person who fills that position will have to navigate is the fact that meme account owners regularly post third-party content—i.e., memes originally created by others—and meme account owners don’t think such posting of third-party memes should be against Instagram’s terms of use. After all, meme account holders like Ben presumably grew their large followings by having an eye for the type of content that resonates with people, even if those account holders don’t create that content themselves.

Instagram’s head of news and publishing partnerships, Lila King, seems to appreciate the merits of this argument, telling The Atlantic that “curation is a kind of creation.” That might be true, but—as Slate points out—“whether that holds up under copyright law is up for debate.”

The copyright questions raised by meme accounts are many and varied, and considerations such as fair use and implied license could come into play. It is also worth noting that many of the memes that appear on meme accounts are themselves derived from preexisting copyrighted content, such as film stills and photographs. In other words, as much as Ben may have appropriated memes created by third parties to populate his meme account, those third-party creators themselves also depend on content owned by others.