At first glance, memes, edits, and remixes are just playful. Sometimes, however, markets and market effects emerge for the management of professional photographs and illustrations. And there are distortions and disparagements that authors, publishing houses, and producers do not like to accept. Not least, an excessive amount of social sharing of excerpts of works also means that dissemination and reception get out of control. The popular and often arbitrary pieces of music that are used in posts on social media and streaming services can no longer be listened to without bias.
Despite these excesses, edits also come from fans and friends of the creators and producers of the original content, and they can have a – albeit uncontrolled – advertising effect. Even if this closeness and appreciation are missing: who really wants to take legal action against consumers and internet communities?
Copyright law basically subjects edits to a requirement of consent, with privileges for creativity and criticism. Thanks to these statutory freedoms of use, the problem is almost solved:
- In the EU area, permitted edits are called “pastiche”, which is understood as a creative engagement that takes up the original but at the same time differs from it and does not affect the market for the original.
- The US fair use principle provides a statutory freedom of use depending, among other things, on the purpose and nature of the use. Transformative designs, that is, one’s own new expressions, strongly support fair use.
- The Swiss Copyright Act contains a parody freedom that also covers comparable modifications of the work. What is meant is satire, parody, or criticism of the work or of its authorship – or also with the work?
This is where the tough nut to crack lies, as a legal question and as a policy question in copyright law: Am I really allowed to use any work to illustrate or reinforce any statement? Is this also the case under Swiss law, in which an older statutory provision applies than in the EU? Does freedom mean that I can freely and frivolously draw on the entire cultural heritage, without regard to the substance used and its own meaning and message – as long as I do not affect the market and the management of the original? So do I take Munch’s Scream for outrage, Picasso’s dove for love of peace, the opening bars of Beethoven’s Fifth for fate, film clips of Darth Vader and Voldemort for evil?
This broad understanding of freedom leads to parody, engagement, and modification no longer having anything to do with the work used. The artist, the author, the filmmaker, etc. lose control over the use of the work and its context. The impact and reception of their works are diluted. The distributors of memes and everyday consumers may not care, but what about the creators of the works?
The problem is increasing, because edits have become much easier with the new image, audio, and video generators. The time of collage snippets is over. Production takes seconds (which is also part of the solution, see below).
It is noteworthy that such a broad application of freedoms of use exceeds the requirement of necessity that characterizes other statutory privileges:
- Quoting: I use the protected work to the extent necessary for my own expression.
- Reporting: I provide information about an event in which the image, the music, etc. appeared.
- Freedom for catalogs and directories: Exhibition and auction catalogs or museum directories provide information about existing works.
The example of the children’s book character Conni shows what the problem can be. During the summer months, AI-supported memes circulated on social media that used the book character Conni in a humorous, mocking, or even hurtful way, without the consent of the publishing house or the authors and illustrators. For example, the Düsseldorf fire department warned of danger on Facebook in view of the first heat wave at the beginning of July: “Conni does not go swimming in the Rhine.” That is advertising. The meme “Conni joins the armed resistance” is a political message. “Conni opens a cotton plantation” is a racist statement.
When the Carlsen publishing house understandably objected, it triggered a storm of criticism: how can anyone take action against Conni memes! And indeed: under the more recent European and German law, rights holders must accept memes and similar edits as long as they are not commercial or distorting.
But is this rule, which the publishing house mentioned also had to submit to, the last word? Would it not be more appropriate to require that a parody or modification relate to the work used? A free engagement should take place with this work, its authorship, or its immediate context, not with something else. Only then are constitutional fundamental rights affected: I must be allowed to show a work (necessity) in order to engage with it publicly. The work should be the purpose, not the means of the expression.
In addition, AI should not be the problem but the solution, because generating free images, audio, and videos with AI systems has been massively simplified. In the past, you had to cut out or draw yourself, whereas now the software quickly produces anything at all, and you can easily give instructions that no 1:1 adoption of existing material and existing characters should take place.
In the image above, the comic adaptation of the Disloyal Man photograph shows that the concrete, recognizable adoption of elements of works from protected material is not necessary. What is adopted is the triangular relationship with glances (idea) and the Ghibli aesthetic (style).
Spelled out in more detail for image-rights fans:
- The present illustration does not show the image, but a modification without adopting the individual characteristics of the photograph, and this for the purpose of engaging with the copyright rules.
- The photograph is an individual intellectual work due to its composition and design. A license is available as a stock image.
- The widespread overlaying of the photograph with text and the subsequent making available on the internet (sharing) is a multiple use requiring a license – but in many cases it is tolerated as a “parody of something or other”.
- Creating and sharing an AI image in the style of the Japanese film studio Ghibli is permissible as a style copy, as long as no concrete individual designs are adopted. The creators and distributors of the AI image therefore do not have to license the Ghibli copyrights. In this case, no use requiring a license by way of reproduction or edit is made, but a style copy that is free of licensing requirements. Ghibli could – legally – only take action against memes that use a concrete character or design.
- The AI image itself is without rights; it is also not a photographic work, because it is computer-generated.
- It would be conceivable to take the position that the photographic template “Disloyal Man” remains recognizable in its individual characteristics as an intellectual work, with the consequence that a license is required in favor of the photographer or their stock image platform also for the Ghibli reproduction. But here, what realistically cannot be prevented will probably be tolerated.
- The image of the young man who turns around to look at a passing woman while his girlfriend looks at him indignantly is used millions of times on the internet. The three-person idea is, of course, in the public domain – but you have to refrain from adopting the image or significantly alienate the image.
- Personality rights: according to the photographer, the models have waived their personality rights with regard to this image (and were presumably paid for this).
A practical guide for memes could therefore read as follows:
For edits to exercise fundamental communication rights (freedom of expression, freedom of art, freedom of science, freedom of the media), copies of ideas and styles are permitted by law and unproblematic. The adoption of concrete works and parts of works is then permitted by law if it is necessary and if the expression directly relates to the material used or its authorship, in particular as parody or criticism. Otherwise, the permission of the rights holders is necessary.
This guide seems appropriate to us for memes, even if international law and, depending on the view taken, Swiss law and legal practice on the internet are more tolerant. More extensive adoptions of protected works and performances should be based on licenses – these could also be collective licenses with flat-rate royalties, as in other areas.
Back to Conni. As a work protected by copyright, she should not have to be used for internet content with which someone wants to make an argument or a joke that has nothing to do with Conni.
The solution is called Bonni. The design is similar but not identical: copy of idea and style, no direct copy and no recognizability of individual characteristics of the original. If the people doing the edits still want the original, Conni, then it is probably because recognizability and credibility are advantageous – that is, precisely the intellectual property.
The present image was created by Philip Kübler with ChatGPT as an example. There are no copyrights in it, because a machine work is not an intellectual creation, the prompt was trivial, and the image does not contain any individual intellectual creations from pre-existing works. It was a matter of seconds.
