If you scroll through social media pages, you can not avoid memes. They are quick to create, all you need is a picture or video clip with a text comment. It is common to take pictures from other people and to edit them. The question is whether the author of the image must tolerate the use of his image.

A meme is an image out of a video or picture. In combination with a line of text, it is typically amusing in nature. The humorous and amusing side of it often comes with slight variations of the text or image. By copying the meme, it can be created by everyone and about everything. It can be satirical and at the same time socially critical. Most of the time, a meme presents a situation or topic of daily living in a pointed way. With that, it gets relatable to other users and is not just for the aim to entertain. It can be used to relate from current events to pop culture references. Especially for this aim it helps when the meme spreads fast through by internet users as happens quite often. A meme is therefore also a powerful tool of social influence by being a way of communication.

In Section 12 et. seq. UrhG the copyright law protects the author’s ideal interests like the right to publish his work for the first time, the right to be named and the right to the integrity of the work. Under copyright law, it is solely up to the author to decide whether and in what way he wants to exploit his work and whom he wants to exclude from such exploitation. By making the work available to the public, the work must be accessible to members of the public. It is publicly accessible if they are not only distributed in a private circle, but also freely accessible on the internet at any time and from any place the users want to. Memes take place in social media and are therefore publicly accessible for everyone. Photographs and videos are protected by copyright as related rights (Sections 72, 94, 95 UrhG). If they are considered artistic, they are protected as photographic or cinematographic works, as stated in §§ 2 (1) No. 5, 6 UrhG. To make a profit, the author can authorize the use of his work for a fee. This is intended to encourage the creation of works that are profitable. The prerequisite for this is not only that the work is sufficiently individual, but also that the work has a certain degree of originality. If these requirements are not met, copyright protection does not apply to these works. As a result, they can be used without the author’s consent.

An adaptation of public works is generally permitted under Section 23 UrhG. However, only if there is a sufficient distance between the original and the new work. Whether a sufficient distance has been maintained must be assessed on a case-by-case basis. The more individual and complex the original work is, the more extensive and original the new work must be. Just changing the text line on the image, as is usual with memes, does not fulfill these requirements. In relation to memes, there is not a sufficient distance is not given.

Nevertheless, § 51a UrhG allows the reproduction and distribution of published works if they serve the purpose of parody, caricature, pastiche. Pastiche presupposes a derivative creation that is in some way based on a work. But only the visual reproduction and addition of text alone does not meet the requirements for this purpose. Because memes are a tool to communicate a social situation humorously, it is necessary that the work is reproduced in a modified, artistic, or communicative way. The benchmark for classification as humor is an objective third party who has an intellectual understanding of the artistic way of communication.

Copyright law serves to balance the interests of the author and the user. Considering the interest of the author, there are no reasons for using the work without any payment of the photographer. Especially not when there is no consent of the owner of the picture to create content with it. Therefore, it is not sufficient to just accompany the work by making a meme out of it.

Considering the Interests of creators, it must be considered what makes a meme. It is the situational humor out of everyday situations, for example. It is not the image alone that does create this comedy. Only in addition to the text it creates a connection like contrasts, to make the meme relatable to the users. This can often be seen when public figures such as celebrities become parts of memes to represent unpleasant situations. Only in combination with a text line, people can relate to that represented context. The picture alone does not presuppose an understanding of creating the comedy. This understanding is not created by the photographer. It is the result of using a cultural understanding to bring two different things together in one context. Particularly, parody has the purpose to make fun of an existing work. In that way the author can benefit from the use because if a meme goes viral it can spread the cult status of the original source of the image or create one.

However, the author can still make use of his rights to protect himself and his ideal interest against the use in special cases. For example, with the help of restrictions, it is possible to act against being associated with discriminatory statements.

All in all, it is appropriate for the fast-moving times, especially represented on the internet, to take images of other people and to edit and to publish them. Therefore, the interest of the creator of memes prevails. Because if the creation for example of memes from images of other people is permitted, as regulated in the UrhG, the distribution of these should also be permitted so that they can be used as a means of communication.