"It's fair use" is the most confidently wrong sentence on the internet, and I say that as someone who builds meme-adjacent products for a living. Fair use is real — it protects a huge amount of remix and commentary culture — but it's a defense, decided case-by-case by a court weighing specific factors, not a blanket permission slip you get to declare in advance.
That distinction doesn't matter much when you're posting a meme in a group chat. It matters a great deal the moment you're building a product — a shirt, a printable, a sellable asset — on top of someone else's image, because that's exactly the point where "nobody's ever been sued for this" stops being a risk assessment and starts being a guess.
The four factors, briefly
U.S. courts weigh four things when someone actually raises fair use as a defense (17 U.S.C. § 107):
- Purpose and character of the use — commentary, criticism, and parody weigh in your favor; a straight, non-transformative commercial reuse weighs against you.
- Nature of the copyrighted work — using a factual photo is slightly safer than using a highly creative work (concept art, a movie still).
- Amount used — less is generally safer, though this alone won't rescue a non-transformative use.
- Effect on the market — if your use could plausibly substitute for the original or damage its market, this is often the deciding factor in practice.
None of these makes something "definitely fine" on its own. They make a use more or less defensible if it's ever challenged — which is a more honest frame than the yes/no question most people ask.
Sharing a meme and selling a meme are different risk calculations
This is the part that actually matters if you're shipping a product. Reposting a meme format for laughs is extremely low-enforcement-risk in practice — individual reposts almost never get chased. Selling a shirt or printable built on someone else's copyrighted photo or character is a different category: it's a commercial use, factor one above defaults against you, and it's exactly the kind of use platforms like Etsy and Printify actively police, because it's their legal exposure too. Treat "is this okay to post" and "is this okay to print and sell" as two separate questions — a meme can clear the first bar and fail the second badly.
The categories with zero exposure
The lowest-risk path isn't threading the fair-use needle carefully — it's not needing to thread it at all:
- Original photography or generated imagery you hold the rights to outright.
- Verified public-domain material — actually expired copyright, not just "old" or "looks free."
- Original text-based formats — the joke lives entirely in your own writing and layout, no third-party image involved at all. Zero copyright exposure, because there's nothing borrowed to have a claim on.
If you're building anything sellable, the third option is worth defaulting to. It's not a bet on how a court would rule — it's just yours.
Copyright isn't the only risk
Two more things worth knowing: a logo or branded product in a meme can raise trademark issues independent of copyright fair-use, and a real, identifiable person's face or likeness — especially on a product for sale — can raise right-of-publicity claims regardless of the underlying photo's copyright status. The safest sellable meme skips all three: no borrowed copyrighted image, no logos, no real identifiable faces.
I wrote the fuller version of this — with the specific fair-use failure patterns I see most often — here: penloomstudio.com/notes/how-to-make-a-meme-without-a-copyright-strike
Top comments (0)