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Basically, can I find a popular meme online and use it in a video-game that I am making money off of without giving credit or royalties to the creator / owner as often these are hard to find and people using these memes is so common.

For example, there is a grumpy cat meme picture at https://i.stack.imgur.com/fzJBP.jpg that meme pages often use, can I use it?

Meme pages often use and steal memes from each other without giving credit and then make money through ads and stuff. This seems to be internet culture so is it ok for me to "steal" and use memes and make money off of them?

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No, that would be copyright infringement. Somebody make the picture and therefore holds copyright. Being a "meme" simply means that there is rampant copyright infringement. However, having seen this picture, you can create your own grumpy cat plus Santa hat picture, and freely distribute / sell it – copyright does not protect the underlying idea (cat plus hat), it only protects the specific expression.

By "use", I assume you mean "copy". You can link to the picture to your heart's content.

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  • Does this mean I can change memes of any format with my own comments or edits and then own that image? – Trigaten Dec 29 '18 at 6:03
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    No, just modifying an existing work does not negate copyright protection. You could have to start from scratch, perhaps using the same underlying idea. If you want to copy and modify an existing work, you need permission. – user6726 Dec 29 '18 at 15:13
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A ‘meme’ is an idea - ideas do not have copyright protection. So “grumpy cat in a Santa hat” is available for you (or anyone else) to give tangible expression to in any way you like.

That photo is an artistic/literary work and is protected by copyright. The fact that it actualizes a meme is irrelevant.

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  • But if I were to sell the Grumpy cat image say with a different hat on or wearing glasses, isn't that still copyright infringement on the Grumpy cat image as it is owned by the owner of Grumpy cat? – Trigaten Dec 31 '18 at 17:45
  • If you modified that photo, yes. If you took your own photo of a cat, a hat and glasses, no. – Dale M Jan 1 '19 at 22:36
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Firstly, a disclaimer, I am not a lawyer, that said, I have read up a lot on fair use.

It depends...

...On what country

When determining fair use, there are many factors and considerations that go into it. For example, US fair use laws are more lenient than UK fair use laws. Where-as in the US you could safely quote an entire paragraph for criticism, in the UK the quoted segments need to be such they don't consist of a substantial portion of the original work (so if a paragraph was 50% of an article, it'd be a substantial portion).

...On who the copyright holder is

Images are even trickier, because source attribution is hard to find. Asking permission is no guarantee of a legal defence as the image poster may not be the rights holder.

Some people may publish images under creative commons, public domain (for example, the US government publishes images as public domain) or as non-commercial creative licences. The onus is on you to do the research to confirm both authorship of work and having the appropriate rights to it.

...On the context

When determining fair use (I am presuming the US here), judges consider the context of what the 'fair use' is for. A criticism published publicly for free is most likely going to be considered fair use, where-as taking someone's picture, slapping some text on it and selling it (or indirectly selling it) will be less likely seen as fair use.

For example of where fair use laws get very grey, look at how YouTube videos are handled and 'Where's the Fair Use?' complaints.

...On whether or not it's transformative

Again, US law, may not apply to worldwide situations. A transformation of a work is whether or not it's been sufficiently changed enough to be declared a unique piece. For example, if I painted grumpy cat myself, and put my own caption on, it would be most likely declared transformative. If, on the other hand, I just changed a few pixels or did something basic like 'sharpened the contrast' then it's most likely that it would not be considered transformative.

...On your financial situation

Of course, even if you have what you feel is a watertight legal situation, you likely could not fend off the behemoth of finances fielded by organisations like the RIAA. Google, despite being a multi-billion dollar industry figurehead, often capitulates to copyright demands (even to the detriment of users on YouTube) simply because the cost of defending every case would be prohibitively too high.

...On where the content is hosted

Now, this is where you run the biggest risk. There's a reason why internet sites can host meme images and run adverts without getting penalised directly by copyright litigation, and this is through the Digital Millennium Copyright Act (DMCA).

Publishers, like YouTube or 'Can I haz?' are protected by safe harbour policies because the content is primarily submitted by it's users. What this means is, publishers aren't held to account for the content they advertise off of if someone else is doing it. However, what they are required to do is supply a means of takedown in the event of copyright infringement.

Theirs is a website, yours is a game

And this is where your case differs - you are selling a game which contains content that you yourself put there. You are not publishing other people's content that they put on your site (and website is the keyword here as Section 230/DMCA protections only apply to websites), but inside a packaged game that you then sell on to others.

Now if you had a website where you hosted games - like Steam - that contained games that may contain copyrighted content which people can file takedown notices for, that would be a different matter. But because you're producing the content, IE the game, you are legally liable for any copyrighted material and licencing/agreements for such copyrighted material that your game contains that you yourself put there.

(You wouldn't be responsible if, say, for example, someone modded your game to include copyrighted songs as that would be the other person's liability)

In closing

The only way to be absolutely sure you have copyright is to produce your own images and write your own unique, original captions.

I hope lawyers can expand upon my points, clarify, provide references in the comments but it should be a sufficient overview for your needs.

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  • There is no such thing as "UK fair use laws." Fair use is an exclusively US concept. UK and EU have "Fair dealing" which is somewhat similar but not at all the same, and usually more limited. – David Siegel Dec 31 '18 at 3:52
  • A use is "transformative" for fair use not because the work is changed, but because the context has changed. A beach scene taken from one travel site to be used on another such site is not transformative. The exact same image used as an example in an article about photographic technique is transformative. A poem quoted for its beauty is not transformative. Quoted to discuss how it relates to the work of other poets, it will be. – David Siegel Dec 31 '18 at 4:02

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