US Congressman Loses Copyright Lawsuit Over ‘Success Kid’ Meme Photo

The mother who took the photo behind the “Success Kid” internet meme has won a copyright infringement lawsuit against former U.S. congressman Steve King who claimed that he made “fair use” of the image in campaign ads.

In 2007, Laney Griner took a photo of her infant son clenching a fistful of sand with a determined facial expression.

The photograph of the toddler became the template for the popular “Success Kid” meme. Griner, who held the rights to the photo, licensed the image commercially to companies such as Microsoft, Coca-Cola, and the White House.

Are Memes Fair Use?

In 2020, former Iowa Republican U.S. congressman Steve King used the “Success Kid” photo in campaign ads for his unsuccessful primary race for reelection.

King lost his primary race for reelection in 2020 following criticism from both parties over his use of incendiary rhetoric involving immigration and other matters.

His campaign used the “Success Kid” photo that year in a campaign fund-raising ad on social media asking for donations to “make sure the memes keep flowing and the Lefties stay triggered.”

King’s campaign did not license the image before using it in its fundraising appeal and Griner filed a lawsuit later that year.

In response, King’s campaign argued that Griner’s lawsuit was a “publicity stunt” and claimed that it had an implied license to the photograph and made fair use of it.

“Memes are generally purpose-built for commentary and criticism, two well-known bedrocks of fair use,” his campaign argued.

But in 2022, an Iowa jury found that King’s campaign had violated Griner’s copyright and awarded her $750 (the statutory minimum amount.)

The ‘Everyone Else is Doing It’ Argument

According to Reuters, King’s campaign attempted to overturn the copyright verdict and appealed the ruling. The campaign argued that it had an “implied license” to use the popular “Success Kid” photograph and that the post constituted “fair use” permissible under copyright law.

However, earlier this month, the 8th U.S. Circuit Court of Appeals in St. Louis upheld an Iowa jury’s verdict that King’s campaign owes Griner $750 for misusing her photo of her son in campaign ads — rejecting its argument that it made fair use of the meme.

Reuters reports that a three-judge 8th Circuit panel ruled in favor of Griner, finding that the factors for determining fair use weighed “heavily” in her favor. The panel said that an image does not simply lose its copyright because it has become popular.

“The Committee’s stated justification is that they were creating and disseminating a meme on social media, as happens millions (if not billions) of times each day,” U.S. Circuit Judge Duane Benton writes.

“The fact that ‘everyone else is doing it’ is not a particularly compelling justification, especially considering the vast majority of these uses are non-commercial.”

 
Image credits: All photos via court documents.