Copyright Infringement on the Campaign Trail

By Kristyn Webb

In a recent decision, the U.S. Court of Appeal for the Eighth Circuit affirmed a jury verdict holding that the use of the “Success Kid” meme by a congressman’s reelection campaign for fundraising purposes did not qualify as fair use, resulting in a finding of copyright infringement and the awarding of minimum statutory damages.

In 2007, Laney Griner captured a photograph of her 11-month-old son, Sam, on a beach with a fistful of sand. This image became widely known as the “Success Kid” meme. Recognizing that she could not control all online uses of Sam’s image, Laney sought to exert some control where she could and secured copyright registration of the photograph. She hired agents and routinely licensed use of the image to companies such as Virgin Mobile, Microsoft, and Coca-Cola.

In 2020, Steve King, a Republican Member of the House of Representatives for the State of Iowa, and the King for Congress Committee used the Success Kid image on websites and social media accounts to raise funds for King’s reelection campaign. The posts depicted the meme in front of the U.S. Capitol with the text “FUND OUR MEMES!!!” and a request for donations. King had been criticized for inflammatory statements on race, immigration, and abortion issues, and was stripped of his political committee assignments by his own party in 2019. 

After discovering the posts, Laney demanded that King and his Committee remove the posts and contact her to discuss settlement for past unauthorized use. The posts were removed, but no settlement was reached. King lost his bid for reelection in the June 2020 primary, and later that year, Laney sued King and his reelection Committee for copyright infringement.

The case went to trial, and the jury found that King himself was not liable for copyright infringement, but that his Committee was liable as an “innocent infringer”—meaning that the Committee did not realize its use of the image was infringement—and awarded Laney $750 (the minimum amount) in statutory damages.

On appeal, the Committee argued, among other things, that its use of the meme was protected under the fair use doctrine. The U.S. Court of Appeal for the Eighth Circuit upheld the jury’s decision, determining that the fair use defense did not apply. 

In particular, the Court held that the Committee’s use of the photograph to solicit donations was purely commercial. Moreover, the Court held, that although Laney’s purpose in taking the photo was not to use it as a meme, that was her intent when she sought registration of the image. Therefore, the Court reasoned, the Committee’s actions in making a meme of the image was not “transformative” such that fair use should apply to trump the Committee’s clearly commercial use of the image. 

In other words, without a license, using a meme to generate revenue can land you hot water. Yet, this case may have greater implications as the U.S. heads into another election cycle. It appears that politicians will need to tread carefully around copyright matters as they continue to fundraise. Relying on well-worn arguments of “memes as political speech” and “campaign contributions as a right of expression” may not save the day.  

Kristyn Webb is the Group Leader of Fishman Stewart’s Copyright Practice Group, and holds a Master’s Degree in Copyright Law from King’s College London.