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CopyRight or CopyWrong: What is the Memeing of It All?

A meme is a virally-transmitted photo that is captioned with text that is meant to parody a cultural symbol or social idea.

One could make a solid case for meme’s finding their lineage within the canon of art history, with artists like Rene Magritte who painted a pipe, only to remind his audience that indeed it was not a pipe, but simply an image of a pipe. Or, if you want an even more salacious example, let’s not forget about Marcel Duchamp,  the father of Dada himself, who took a postcard of Leonardo DaVinci’s ‘Mona Lisa” and added the letters “L.H.O.O.Q.” Say it three times fast and in the French you start to hear, Elle est chaud au cul, or, “She has a hot ass.” That’s some early meme work right there.  

Modern day meme masters like Jerry Gogosian and Brad Troemel are usually able to avoid legal recourse because their works are classified as ‘parody,’ and parodies are guaranteed constitutional protection of free speech under the First Amendment of the U.S. Constitution. 

So, are memes considered fair use? The answer is usually yes. Whenever you post an image on Instagram, the artist of that image holds the copyright, so if you’re going to meme, do so responsibly. Make sure the parody is obvious.

Marcel Duchamp, L.H.O.O.Q., 1919/1965. Color print, pencil on gouache, on reproduction of the Mona Lisa by Leonardo da Vinci. Photo Credit: bpk Bildagentur / Staatliches Museum / Art Resource, NY.
© Association Marcel Duchamp / ADAGP, Paris / Artists Rights Society (ARS), New York 2020