Memes are omnipresent in social networks and are an integral part of modern communication. But what is the legal situation? In this article, I explain whether and under what conditions the creation and distribution of memes is permissible.
1. Copyright: Basic considerations
Memes often use copyrighted content, such as images, videos or film clips. According to Section 19a of the Copyright Act, the distribution of such works on the Internet constitutes making them publicly available, which generally requires the consent of the author. Without this consent, distribution is initially not permitted.
However, there are exceptions that have been expanded by the introduction of the “pastiche barrier” as part of the 2021 copyright reform. This barrier allows protected works to be used for parodies, caricatures or pastiches, as long as the use represents a creative engagement with the original and is not just a simple copy. Typical memes often fall under this barrier, as they often use the work in a humorous or satirical context.
Often the original works are used as the basis for a meme and are changed in such a way that a new work is created and thus no longer constitutes an infringement. The degree of change is important here.
2. Personal rights: protection of the right to one’s own image
Another relevant aspect concerns the “right to one’s own image”, which arises from the general right of personality according to Article 2 Paragraph 1 of the Basic Law and is regulated, among other things, in Sections 22 ff of the KUG. This grants the people depicted the right to decide whether their images are published. If a person is depicted in a meme without their consent, this can constitute a violation of personal rights. This applies in particular if the depiction is defamatory or derogatory, which can be assessed, for example, on the basis of the criminal provisions in the Criminal Code. Public figures such as celebrities have to put up with more than private individuals, but there are limits here too. It depends on whether the depiction of the person intrudes on their intimate or private sphere or “only” on their public or professional sphere.
3. Trademark and competition law in marketing
Companies have also recognized the potential of memes and are using them in marketing. However, trademark and competition law regulations must be observed. The use of third-party logos or trademarks in memes can constitute a trademark infringement, especially if there is a risk of confusion or the reputation of a brand is exploited. In addition, memes may not be used to disparage competitors, which could constitute a violation of the Act against Unfair Competition (UWG).
4. Satire and parody: protecting memes through freedom of expression
Memes that are satirical or parodistic often enjoy extended protection through freedom of expression and freedom of art (Article 5 of the Basic Law). According to the case law of the European Court of Justice (ECJ), parodies do not necessarily have to be artistically sophisticated; it is sufficient if they are humorous or mocking. Therefore, many memes are permissible as parodies, provided they represent a creative engagement with the original and are not just a simple reuse of the work.
Conclusion: Memes between creativity and law
Most memes are certainly legal and are wrongly warned against. Memes can be legally permissible if they are covered by the limitations of copyright law or freedom of expression. However, caution is particularly important in marketing in order not to infringe trademark or competition law. Images of people in their private or intimate sphere are also not permitted. If you want to be on the safe side, you should license photos or images via databases and be able to prove the license in an emergency.
Do you have any questions?
Do you want to have your memes checked in advance or do you want to defend yourself against a warning? I’m happy to help you! Just call us, send an email to [email protected] or write to us using the contact form here.
Yours, Daniela Wagner-Schneider
