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If were to be building a video game that I would be profiting off of (through ads or some buying feature), could I use memes that are derivative of copyrighted materials.

For example,

There is a currently popular meme called Big Chungus (which can be seen at https://i.stack.imgur.com/MxbBU.png)

It is taken from the Bugs Bunny TV show which I'm pretty sure is copyrighted. This meme, however, has spread through Instagram and the Internet and become frequently referenced. Does this mean it's in public domain and therefore legal to use?

Thanks

edit: This is different from the linked question because of the reference to frequent use online as noted in the comment.

edit:

The image of Bugs Bunny as seen above is directly taken from the show, but another meme, called "Ugandan Knuckles," is a silly likeness of echidna from Sonic the Hedgehog.

In this image, "Ugandan Knuckles" is pictured far right while the others are different likenesses of echidna. enter image description here

Since this is a silly version and therefore a parody (right?) is it fair use?

edit: Thanks David Siegel for this edit. I believe the commentary Ugandan Knuckles is making is simply to make fun of the original image. Is this a legitimate commentary?

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The image of Bugs Bunny is both copyrighted and trademarked by Warner Bros. The modified image linked to from the question (and previously included in it) is certainly a derivative work of the Bugs Bunny image, and is probably close enough to be a trademark infringement as well, if used to advertise or sell goods and services. Therefore using it without permission from the rights-holder (Warner Bros) will be both a copyright and trademark infringement. Warner Bros could and might well sue, obtaining damages. If Warner Bros does not choose to sue, it is unlikely that any government action for criminal copyright infringement would be taken, although if the image were used on a large scale with a profit motive, criminal action could be taken.

Copyright, in particular, is not lost even if many people infringe, and the copyright holder can choose freely which infringements to sue over, and which ones to ignore.

  • because this is a "meme" image, is it not a parody of Bugs Bunny and therefore fair use? – Trigaten Dec 26 '18 at 23:13
  • @Ron Beyer 20 Thanks I have corrected my answer. – David Siegel Dec 26 '18 at 23:41
  • @Trigaten In order to be a parody in the sense used in US copyright legislation, the image would need to in some way comment on the original, not just be a commonly used variant of it. The mere fact of being a "silly version" does not make something a parody in this sense. How does this "meme" comment on the original? – David Siegel Dec 26 '18 at 23:43
  • The distinction between a parody and a rip-off is primarily whether the two things compete in the same market and secondarily whether consumers might thing the parody is endorsed by the owner of the original. Here, you're using someone else's video game character in a video game in a way that doesn't seem to really parody it or put it in a very different context. That's unlikely to be judged to be fair use. – David Schwartz Dec 27 '18 at 1:17

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