Representative Steve King (R-Iowa) wanted supporters to fund his memes—but he may end up paying for them instead. On Monday, King and his campaign for reelection to the House of Representatives received a cease-and-desist letter from the attorneys of Laney Griner, the mother of 2011’s most ubiquitous meme, Success Kid: a baseball-shirted cherub clasping a fistful of sand with a look of utter triumph. King’s campaign had used the famous image of Griner’s son for an ad, emblazoning it with the phrase “FUND OUR MEMES!!!” and superimposing the baby over an image of the US Capitol. As soon as she found out, Griner made it clear she would not stand for it.
She may not have to. Even though the point of a meme is that it gets reused and remixed and reappropriated, and Success Kid in particular has been memed across the world for almost a decade, Griner could have the law on her side. “The question everyone is going to be asking is, can you copyright a meme? But that’s not the right question to ask,” says Derigan Silver, who researches internet law at the University of Denver. “[King] is using the original picture of this kid, which is clearly copyrightable.” To that end, Griner does, in fact, hold the copyright, and she wouldn’t be the first person to try to enforce their copyright of an image-turned-meme. Matt Furie, the artist behind the infamous Pepe the Frog meme, has taken around 75 people and entities to task (or court) for reproducing Pepe’s image without his permission.
The real legal questions are two: Did he violate the Griners’ right of publicity, and can King prove that his campaign’s version of the meme is a fair use of Griner’s copyrighted material? The publicity stuff is pretty simple and is designed to give people control over what their image is being used to sell. “You can’t be forced to endorse Coca-Cola if you only drink Pepsi,” says Stacey Lantagne, who researches intellectual property law as it pertains to internet creativity at the University of Mississippi School of Law. Considering that Griner has called King “vile” and the Republican party “disgusting,” it’s safe to say she doesn’t endorse King’s run for the House.
The fair use question is a good bit more complicated, especially with regard to memes. Many meme makers and users are protected from copyright infringement lawsuits because they’re transforming the meme or making commentary on it, which are considered fair uses. According to Lantagne, many lawyers would be very hesitant to say that someone sharing a meme violates copyright law—it would undo meme culture and shut down social media sharing and generally be bad for expression. “What I find striking about [King’s] use here is that he actually doesn’t seem to be using it as a meme. He’s not saying, ‘Oh, I’m really successful’ and using Success Kid to punctuate that,” she says. “He’s just using it for fundraising.” That would suggest he’s using someone else’s copyright for his own financial gain, which is almost always verboten, but made especially so because Griner has a history of licensing the meme to companies like Honey Bunches of Oats and Coca-Cola. “She could argue that she’s got a market for this that his use is undercutting,” Lantagne says. “The same way illegal streaming undercuts the movie market.”
King’s potential argument, of course, is that campaigning is political speech rather than pure marketing, and he’d have some legal precedent in his favor. “It isn’t uncommon for political candidates to run into issues when using copyrighted music,” says Amanda Reid, who studies the intersection of First Amendment and copyright law at the University of North Carolina. Musicians don’t tend to win those suits, but they also aren’t dismissed outright. Griner and King seem to be in wholly uncharted territory. Reid couldn’t find any precedent for a copyright suit involving a politician and a meme. “These cases usually settle,” she says.
