Memes on Memes and the New Creativity

Article Source: New York University Law Review, Vol. 97, p.p. 453-565, 2022
Publication Date:
Time to Read: 2 minute read
Written By:



Memes challenge basic assumptions underlying copyright law. Creators of memes want to be copied. Creators may use copyright selectively to prevent changes to a meme by a select few.


Policy Relevance:

Copyright law does not adequately support new forms of creativity.


Key Takeaways:
  • “Meme" refers to viral visual images remixed by multiple users to add other images or text; memes involve copying on a large scale.
  • Copyright law assumes that people create valuable works without copying, that authors do not want their work to be copied without permission, and that authors make money directly by selling copyrighted works.
  • Memes are inconsistent with the assumptions underlying copyright law.
    • Creators of memes want to be copied.
    • Meme creators want their works to be transformed by others.
    • Memes cross the line between noncommercial and commercial content.
    • The authors of memes often cannot be easily identified.
  • Copyright infringement claims involving memes are usually brought when the meme is used in advertising or to convey an undesirable message; meme culture involves selective enforcement.
  • Most creators profit from memes indirectly, using memes to attract followers; memes blur the lines between commercial and noncommercial use, key to deciding whether the use is a “fair use” or infringement.
  • Meme culture benefits from strong social nonenforcement norms, allowing memes to be copied freely; however, this could change, and copyright infringement suits could destroy meme culture.
  • Lawmakers and courts could consider meme-specific copyright rules.
    • Copyright protection for memes should be short, perhaps days or weeks rather than years.
    • Protection should be denied when a meme has no easily identifiable author.
    • Courts could expand fair use doctrine as applied to memes.
  • The Supreme Court has rejected challenges to copyright law based on First Amendment rights of free speech, but selective enforcement of copyright against a handful of meme creators raises important free speech issues.
  • Memes are paradigmatic of a shift in creativity.
    • Images have surpassed words as the primary mode of communication
    • Copying plays a central role.
    • Contemporary creativity involves diffuse participatory authorship.
  • More traditional forms of creativity will continue and are well-supported by traditional copyright principles, but new forms of creativity challenge copyright law and theory.



Jeanne Fromer

About Jeanne Fromer

Jeanne Fromer is a Professor at New York University School of Law where she teaches in the areas of intellectual property and contracts. She specializes in intellectual property and information law, with particular emphasis on unified theories of copyright and patent law. She is also Co-Director of the Engelberg Center on Innovation Law & Policy.