A friend has taken a picture from a professional photographer’s website, attached a caption to it, and wants to start posting it in places in hopes that it will catch on as a meme.
Forgetting about the question whether it’s catch-on-able and whether it has much chances even if it is catch-on-able and the question of the value of the whole exercise in general, I lightheartedly* cautioned him concerning copyright violations, since the photo is explicitly copyrighted on the photographer’s website.
The friend replied that it’s parody, so it’s okay.
I doubt this, but I, as they say, unno. And now I’m curious.
You can’t just take any old photographer’s work, can you, and slap a funny caption onto it, and call it your own work, can you?
*I appended this adjective so that you wouldn’t have the impression that I was in any way being all grave and serious.
There is already a similar case with the “O RLY?” meme. The original photographer of the snowy owl has sent several cease and desist orders, but I’m unsure about what actual legal recourse he’s taken.
Here’s a link with a bit of a humorous review of it: O RLY? | Know Your Meme
Either way, bad idea. If the original author cares and can track him down, he could potentially face getting sued.
Unfortunately, the only correct answer is that parody is what a court says it is. Virtually none of these cases ever get to court.
IANAL, but I read a lot about this stuff. From these cases I think a court may have a problem with nothing more than a slogan plastered across somebody’s original. Courts like to see you put some effort into it.
As a mere internet meme the odds are a zillion to one against this ever winding up in court, but the photographer might go after the web hosts who are more likely to oblige by taking it down.
IANAL but my brother is a lawyer that specializes in intellectual property. I have had discussions with him on various cases over the years and my impression is this would not qualify as parody or fair use in general. I am seeing him on Sunday, so I can ask him then if this thread is still going.
Generally for something to count as a parody it needs to make fun of the original in some way. Using an image without permission as part of an unrelated joke would not be considered fair use.
It would not fit into any definition of parody, which means imitating an existing work for comic effect. Bored of the Rings is a parody. Copying Lord of the Rings with a clever slogan on the cover is not.
As others have pointed out “fair use” often depends on the judge. This is why copyright and trademarks can be so “iffy”
Andy Warhol’s painting of Campbell’s soup went through something like this. It was eventually ruled that his use of Campbell’s image WAS a work of art. Warhol was not setting out to make money off Campbell’s Soup. He was making an artistic commentary on the world at large not a commentary about Campbell’s Soup.
Another part of “fair use” is what it is used for. I have a number of parody websites, and I have gotten notices telling me to take it down. I say “sue me” and of course follow the proper channels. So far no one has persued me. I think in large part, because they are comic parodies, there is ample disclaimers on the website what it is, so there’s no mistaking it for the real thing. And I provide a link to the originals. But I think the key that really helps me, is it is NOT commerical. It has no ads and runs for “fun and amusement only.”
Commercial intent often is the key in a lawsuit over “fair use.”
A portion of the fair use defense relies on the parody having required significant additional activity. Just slapping a caption on a photo requires very little work.
You also need to show why it was necessary for your work of art to use the copyrighted material. If you’re painting Campbell’s Soup cans, you need to use the image of Campbell’s Soup. If you’re doing a LotR parody, you’re explicitly using portions of the original text to make jokes - there’s no jokes without them. If you slap a caption on a random photo, while the joke wouldn’t exist without the situation shown in the photo, you will likely want to be able to establish that the image created by the photographer is not easy to recreate; if it were possible for you by yourself to capture an image of the same situation needed for your parody, there will be an issue of why of you didn’t and used copyrighted material instead.