In short, it can.

Under 17 USC § 102 (a), “[c]opyright protection subsists…in original works of authorship fixed in any tangible medium of expression”. This, of course, includes photographs. When a person creates a meme, they generally alter the underlying image or photograph in some respect. A popular example is adding block text superimposed over the photo to make some kind of statement. As such, a typical meme can be considered a derivative work. The owner of a copyright has the exclusive rights to reproduce the work and prepare derivative works based upon the copyrighted work. Accordingly, both the creation of a meme (preparing a derivative work based off another’s image) and sharing a meme or copyrighted photo online (reproducing and publishing the copyrighted work) could possibly amount to copyright infringement.

Fair Use Exception

Many defendants who have posted copyrighted photographs – whether as a meme or otherwise – to social media sites have argued that the posting constitutes fair use, which is a defense to copyright infringement. There are generally four factors that are weighed in determining whether a work falls under the fair use exception. These factors include:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

These types of cases typically raise the question of whether the meme is being used for commercial gain by the person sharing the meme, how transformative of the original work the meme is, and whether the meme is parodying the underlying image.