There's probably no need to explain what memes are. However, a problem can arise when we attempt to classify them legally. The Kenya Copyright Board (hereinafter referred to as the KCB), the Kenyan government organization responsible for copyright matters, recently weighed in on this topic. In a tweet, it raised public awareness of the copyright protection of memes. This inspired me to create today's post and thus expand its audience.
How does the Kenya Copyright Board define a "meme"? According to the Kenya Copyright Board, a meme is an image, video, or text used on social media, primarily for humorous purposes, while also illustrating a certain line of thought or opinion on a given topic. Breaking down a meme, we conclude that it is created from, for example, images that are protected by copyright. Consequently, as the Kenya Copyright Board rightly points out, only the copyright holder of the specific work on which the meme is based has the right to create derivative works using that work. Alternatively, this could also be the person to whom the author has granted a license to use the specific work in a given manner.
Referring to the above, the KCB stated that creating memes without the authorization or license of the entity that holds full copyright to the work that forms the basis of the meme, which meets the definition of a source work, constitutes an infringement of the right to reproduce the work. Of course, memes are a generally accepted and tolerated practice adopted by social media as a way to express opinions on a given topic, often in a less invasive form than simple verbal sparring. However, this newly emerging practice does not mean that memes or their creators are above the law, which implies the need to first obtain a license or authorization from the creator of the source work.
Does the above mean we can't create or use memes? Of course not, at least as long as we use the source work to create the meme for purely non-profit purposes. A problem may arise only when we use someone else's work for commercial purposes, when the creator may be interested in the benefits we receive, which actually result from the work previously put into creating the work, for example, a graphic.
In summary, raising awareness of these issues is crucial, as they are often not as straightforward as they might seem to those unfamiliar with copyright law. In today's world, there is an increasing number of so-called "tacit approvals" for illegal practices, and such posts, for example on social media, help shed light on the need to comply with the law. It's important to remember that even a meme often reflects another person's own, often significant, contribution.
This alert is for informational purposes only and does not constitute legal advice.
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