Fox Business might think rapper Ja Rule (ne Jeffrey Atkins) has something valuable to say about the 2016 election but those in the know wouldn’t seek Rule’s counsel on anything except maybe how one should pair his bandanna with baggy jeans. So I was pretty unsurprised when Ja Rule was clowned on the internets for declaring that Michael Jordan receives $1 each time the immortal “Crying Jordan” meme is shared online. Joke’s on Ja.
This is ridiculous because Ja Rule believes anything produced by a poorly constructed fake news site but also because Ja Rule, an artist with copyright and trademark interests of his own, has no basic understanding of how intellectual property works. Short story: while Michael Jordan and the Associated Press photographer who captured the photo have interests and rights in the image from which the meme is derived, whether they can collect fees for its use requires a fact-based analysis and a basic grasp of fair use.
I’ve written about memes, copyright infringement and fair use before so I won’t get too into the weeds here. Suffice to say that the doctrine of fair use (17 U.S.C. § 107) provides a framework for limiting when a copyright holder can take action against someone for reproducing the copyrighted material. Courts determine whether something is or is not fair use by weighing four factors:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonproﬁt educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
Thanks in part to Miami bass and IP law legends 2 Live Crew, fair use allows for parody and criticism of original work which seems to apply to most memes, in particular Crying Jordan.Considering the intent behind the Copyright Act and applying the four-factor test, I’m of the opinion (see disclaimer below) that the only way Mr. Jordan will be getting your dollar bills is if you stand in line for a pair of OVO 6s. Here’s why I say so:
BEYOND THE ACTUAL COPYRIGHT CONSIDERATIONS, I HAD QUESTIONS WHEN I SAW RULE'S TWEET. WHY WOULD IT BE $1.00 EXACTLY? WHO WAS LEVYING AND COLLECTING THESE FEES? IN WHAT MANNER? THROUGH WHAT TYPE OF MECHANISM WERE THEY MONITORING AND CONTACTING ALL OF THE PEOPLE WHO SHARE THE MEME?
- The vast majority of people creating and sharing Crying Jordan memes don’t profit from them, not even indirectly.
- The nature of the original work – a photo of Michael Jordan crying as he was inducted into the Basketball Hall of Fame – is so far removed from the ways in which the meme is employed.
- The Crying Jordan memes aren’t simple copies of the AP photograph. They’re almost always transformed and integrated into wholly new scenarios chock full of comedic context and unspoken inside jokes. Typically, only Michael Jordan’s face, devoid of any original context markers is used.
- The Crying Jordan meme is unlikely to harm Michael Jordan’s or the Associated Press’ brands because the memes are so ridiculous and hardly anyone (besides Ja Rule maybe) would attribute their existence to the AP or Michael Jordan himself. Further, the memes don’t appear to harm or devalue Michael Jordan’s brand in the marketplace. I direct you to Exhibit Z, aka your boyfriend’s shoe rack.
All that said, nothing is guaranteed. Every fair use inquiry is based on the facts of the particular case at hand. Thus it would be impossible to say that Jordan or the AP could never pursue legal action behind this meme. One only needs to look to Getty Images’ aggressive pursuit of those who infringe upon its copyright – everyone from small bloggers to major corporations have received threatening letters from Getty’s legal team for using licensed images without permission/payment.
Better believe that Michael Jordan’s lawyers are on the lookout as well, but according to Jordan spokesperson Estee Portnoy, “Everyone seems to be having fun with the meme, and it just keeps going. We haven’t seen anyone using it to promote their commercial interests, which is something that we’re monitoring." The focus on commercial interests – people and companies making money from the meme – stems from Jordan’s “right of publicity” which “prevents the unauthorized commercial use of an individual's name, likeness, or other recognizable aspects of one's persona.” You and I are probably safe, though, as most of us who share the meme don’t profit from it, not even one dollar.
Disclaimer: The above post is provided for informational (and humorous) purposes only. It is not legal advice. Do not rely on it as legal advice. That would put you in the same boat as Ja Rule and we’ve just learned why Ja Rule is wrong. Don’t be Ja Rule. If you have a question about a legal matter, you should contact an attorney licensed to practice in your state. I am a lawyer, but I’m not your lawyer. If you want me to be your lawyer, particularly in regards to IP, copyright and digital brands & business, you should contact me. The previous sentence is attorney advertising.