What does this meme? How copyright protected the “success kid” meme

We’ve all seen it, possibly even used it – the photo of a little boy in the green and white shirt, on the beach, with a fist full of sand and determined look on his face – which has been doing the rounds since 2007, after Laney Griner took a photo of her 11-month-old son, Sam Griner.

Reports state that Griner uploaded the image to Flickr and Getty Images, both platforms through which photographers can licence their images for use by others. From there, the memes flowed, and the success of the image resulted in the “success kid” meme going viral, loved, posted and reposted by many.

So significant was the interest in the “success kid” meme, that various well-known brands licensed the image from Griner for use in their advertising campaigns. It was not long before the “success kid” meme also featured in a political campaign, but this time, its use was not authorised by Griner.

United States Congressman, Steve King’s election committee, used the iconic meme to solicit campaign donations, something to which Griner objected, and a legal dispute ensued:

Griner instituted a claim for copyright infringement and a violation of Sam’s privacy, demanding that the image be taken down and that royalties be paid for the unauthorised use of her photograph.

King defended the matter, inter alia, on the basis of an implied licence stating that memes are widely shared and reproduced millions, if not billions, of times every day. He also relied on the argument that his use of the meme was intended to invoke a humorous response, and therefore amounted to fair use.

The court failed to see the humour and held that the defence of “everyone else is doing it”, was no justification for the unauthorised use of the photograph. The inclusion of the “success kid” meme in the election campaign was found to be an act of copyright infringement, both in the first instance, and on appeal.

So, can you still use a viral meme on social media and in your WhatsApp conversations? The short answer is, it’s complicated…

The fact that an image or photograph is published online, widely available and easy to access, does not detract from the fact that copyright protects that material and downloading, replicating or even sharing content without the consent of the copyright owner may well amount to infringement.

Having said that, in most instances, a licence is granted by the copyright owner to the platform, when copyright protected content is uploaded onto social media platforms. Such licence terms typically extend to the use of the material (such as sharing, re-posting and creating duets) by other users of the platforms, lessening the risk of content sharing by users in that environment.

However, any off-platform use would not be covered by the licence granted to the social media platform, which means that there is indeed a risk of copyright infringement. The risk of attracting a legal claim of course increases exponentially where the image is used in a widely publicised manner, such as an advertising or election campaign.

So, what does this all mean? Social media platforms are overflowing with creative content that may suit your purpose just fine, but copyright infringement does not become legal just because the meme went viral.

Werina Griffiths

Partner | Trade Mark Attorney

View Bio

Nontando Tusi

​Associate | Attorney

View Bio