Copyright status of internet memes?

'Is it legal', 'can I do this' type questions and discussions.
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Ryan
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Copyright status of internet memes?

Post by Ryan » Tue Feb 22, 2011 2:13 am

I have a website with a shared drawing canvas (acme squares). Users, customers in fact, post images which become part of that canvas. I believe that makes it a Collective Work, rather than a Derivative Work. User generated content is added automatically, without my involvement.

To add complexity, the shared canvas is published under a creative commons licence, which customers agree to.

Recently a customer added an internet meme (Top right corner), and I find I have no idea what the copyright status is. Common sense which is always wrong in legal matters, says public domain. It was clearly posted as a prank, and the customer hasn't responded to email. That leaves it to me to sort out.

Found the image on Wikipedia (Link to copyright status of pedobear png removed) but the licensing info is generic and non-committal.

I don't want to remove it because I'd have to refund the customer. Though I have to be strict on copyright violations, to preserve the free content compatibility of the overall work.

Trying to analyse this myself there's too many value judgements, which I'm not qualified to make.

My wildest guess is:
It's an orphan, published artistic work, that in the context of my site is, non-transformative, published in whole, and for commercial purposes, that will have absolutely no effect on potential market value, because it doesn't have one.
...and is therefore illegal to copy and use, and must be removed.

Is this correct?

Thanks,
Ryan

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AndyJ
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Post by AndyJ » Tue Feb 22, 2011 2:23 pm

Hi Ryan,
I think that if you do not have evidence to the contrary, you have to assume that the image is not in the public domain, and therefore publishing it in your shared drawing canvas may infringe copyright.
I notice that the Acme Squares Creative Commons terms of use say:
Users agree not to use the Websites or Services to:

1. Post, use or transmit Content that you do not have the right to post or use, for example, under intellectual property, confidentiality, privacy or other applicable laws;
which, if the these Terms apply to your particular project, ought to give you the right to remove anything which potentially infringes copyright without having to refund a customer, since they are in breach of the rules.
The term 'orphan work' has been much used in recent years, but such works are still in copyright unless it can reasonably be concluded that the work is in the public domain by virtue of its age; the fact that the original author cannot be traced does not remove the copyright status.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

Ryan
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Post by Ryan » Tue Feb 22, 2011 3:18 pm

I'll be sure to make it crystal clear in my own terms and conditions, so there's no confusion.

I find this a bit absurd though. When I looked I found no serious discussion because, well the nature of the content. It's so widely disseminated, published anonymously, created collectively, and evidently with no intent of using their exclusive rights, but is nevertheless mass copyright infringement.

Seems more like modern day "folk art" to me, and copyright is overreaching.

Anyway, thanks to the clarification.

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