Using the Crying Michael Jordan Meme: Playful Troll or Inevitable Lawsuit?

mj memeBy Yayi Ding

The Crying Michael Jordan Meme has struck again! However, this time it has struck at the expense of Jordan’s own alma mater, the University of North Carolina (UNC). Earlier this month, the annual NCAA championship game ended in a dramatic fashion, as Villanova hit a buzzer-beating shot to end UNC’s title hopes. And almost immediately, the internet responded, with none other than the wildly popular Crying Michael Jordan Meme. The Crying Michael Jordan Meme has become an internet sensation in recent years, but can its use ever lead to legal troubles?

The meme in question depicts an emotional Jordan with tears streaming down his face. A widely-shared image in recent years, many of us have probably seen it before. The picture originated in September 2009 when Jordan was inducted into the Basketball Hall of Fame. As he gave a heart-felt acceptance speech, Associated Press staff photographer Stephan Savoia captured the iconic image. The resulting meme has since gone viral, and it has been used in response to losing players, losing teams, losing coaches, or really any undesirable situation. In fact, the website Complex has compiled a list of suggested situations to use the Crying Michael Meme, such as “When Your Mom Eats Your Halloween Candy,” “When You Get Dunked On,” and “When Your Parents Pick You Up Early.”

All of this is in good fun, but what about the legal rights of the Associated Press, who owns the copyright to their photo? Or what about the rights of Jordan, who has received publicity that he probably could not have imagined? Can use of the meme lead to a lawsuit?

To begin, the Associated Press has not ruled out the possibility of litigation to protect its copyright under Section 106 of the Copyright Act of 1976. To that end, Associated Press spokesman Paul Colford has stated that “We own the rights in our photo . . . we could enforce those rights depending on the use and other factors, as is the case with all AP photos.” Further, Jordan spokesperson Estee Portney has said that the Jordan camp is closely monitoring use of the meme. They appear to be particularly concerned about use of the meme to promote commercial interests. In short, anyone who uses the meme in hopes of making a profit would likely risk facing a lawsuit.

However, Section 107 of the Copyright Act offers a “fair use” defense for defendants in copyright cases. Fair use is a limitation to the exclusive rights granted under Section 106, and it recognizes that certain uses of a copyright-protected work do not require permission by the copyright holder. For example, it allows for use of the work in news reporting, criticism, parody, research, or education. Section 107 lists four factors to determine when a use would fall under the fair use defense, and a key consideration is whether a user “creatively modified” the work such that it represents a “transformative” use of the original material. If so, the user would probably not be violating copyright law.

So, because the Crying Michael Jordan Meme by nature is a “creative modification” and thus a “transformative use” of the original photograph, it looks like a copyright lawsuit over the meme would probably not succeed. Nonetheless, copyright matters are normally examined on a case-by-case basis, and the result can hardly be guaranteed (as is true with many legal issues).

One thing is certain though. And that is, if a lawsuit is ever filed, a new use of the popular meme would be born: “When You Get Sued for Using the Crying Michael Jordan Meme!”

Image source: Twitter.

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