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Court Rules “Success Kid” Meme Use in Political Ad Does Not Qualify as Fair Use

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When the Obama White House in 2013 used the “Success Kid” meme to promote, in posts on social media, the adoption of the Immigration Reform Bill – nobody clenched a fist, much less batted an eyelash to brand this PR strategy as a copyright violation.

However, the same can’t be said for the case of former Republican Congressman Steve King’s use of the meme (variations of which have been all over the internet for the past 15 or so years). But, when it made its way to one of King’s Facebook posts in 2020, the family of the child whose picture is used as a template sued on copyright grounds.

And now a court has once again sided with their arguments. The “new rule” is that the image turned into a meme, when used in a political ad, does not fall under the fair use copyright exemption.

The mother of the child, Laney Griner, has no problem with the picture being used in other types of ads – the United States Court of Appeals For the Eighth Circuit ruling notes that she took the photo in 2007, and after “Success Kid” became extremely popular, copyrighted it in 2012 to then license it to the likes of Virgin Mobile, Vitamin Water, Microsoft, and Coca-Cola, who used it in ads.

The original 2022 verdict in the case brought by Griner against King was that unlicensed use took place and that his campaign, but not the congressman himself, was guilty, and ordered them to pay $750.

In appealing the ruling, the campaign argued copyright law’s fair use rule to defend the inclusion of the meme in a fundraising effort. Another argument was implied license.

Now the court of appeals has found that the latter claim was abandoned during the original trial and, as for fair use – this was rejected based on the criteria the judges set for themselves to consider: whether the use was commercial, and “how much of the photo” was used.

Regarding other political campaigns (notably, the Obama administration pushing the immigration legislation), this latest decision saw the circuit judge agree with the trail judge that the evidence about the meme’s association with political ideas should not be considered.

We obtained a copy of the ruling for you here.

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