Ex-Congressman’s Meme Fight Faces Long Odds at Supreme Court

Flaws in former Rep. Steve King’s petition asking the Supreme Court to rethink copyright liability for meme posting will likely hold back the bid for clarity and legal fees, attorneys said.

The nine-term Iowa Republican told the justices he’d wrongly been held liable for posting—and quickly taking down—the “Success Kid” meme on his campaign Facebook page, arguing he had an implied license because the photo was so widely shared. The owner of the copyright should at least owe attorneys’ fees incurred after he offered a $15,000 settlement, which she rejected before winning just $750 at trial, King argued, describing the case as having “dizzyingly cycled between publicity-stunt and political attack.”

The justices found at least one of King’s two questions interesting enough to request a response. Copyright owner Laney Marie Griner countered in a Dec. 12 filing that the case is a “poor vehicle” to address the “shallow circuit split” on attorneys’ fees, a question of “limited importance.” She also said the Eighth Circuit correctly found King already waived his implied license argument before the verdict.

King’s petition warned of endless litigation over memes thanks to “infringement on an inconceivable scale” in “a world of infringers merely waiting to be sued.” But that bleak picture of meme-posting liability won’t come to fruition, at least for ordinary users, copyright attorneys said. Most users aren’t using the images to solicit money, and rights holders can selectively enforce their rights however they see fit, they said.

“Why should there be some mass internet ‘get out of jail free’ card?” IP attorney Marsha G. Gentner of Dykema Gossett PLLC said, rejecting King’s implication that if a work is shared enough, the rights disappear.

King’s petition called it “self-evident” that Griner can’t encourage online use of the image only to “demur when someone she finds ‘abhorrent’ takes her at her word.” Gentner rejected that notion.

“The fact of the matter is a copyright owner can license their work to whomever they please for whatever reason,” she said.

Laney Griner’s copyrighted and much-memed photo of her son, Sam, was displayed to boost the campaign of ex-Rep. Steve King (R-Iowa).

Source: Court documents

Implied License

King posted the meme of Griner’s son Sam looking triumphantly into the camera, gripping a handful of sand, to Facebook in January 2020. The post titled “Fund Our Memes!!!” asked people to “throw us a few dollars to make sure the memes keep flowing and the Lefties stay triggered.”

King ultimately lost his 2020 primary after being stripped of committee assignments and rebuked by Republican Party leadership for inappropriate comments on race and immigration.

Griner, who registered the photo with the Copyright Office in 2012, sued in the US District Court for the District of Columbia in late 2020 before the case was transferred to the Northern District of Iowa. She refused a settlement offer and went to trial, where she won the statutory minimum of $750. Both parties were denied fees, and the Eighth Circuit affirmed.

King asks the justices if an implied license requires parties to directly interact, as the Eighth Circuit held—an addition to high court precedent. When internet users post images to “hordes of unseen, unidentified users, the requirement of requests and delivery to a known party cannot stand,” he argued.

In a vacuum, King’s “implied license question is a difficult one,” IP law professor Bruce Boyden of Marquette University said. King’s “right that it’s problematic to apply that to the internet,” he said.

But, Boyden said, that doesn’t help King’s case because Griner didn’t indicate approval of uses by campaigns to solicit donations. The petition glossed over the the Eighth Circuit finding Griner previously licensed the image to Coca-Cola, Microsoft, and others, suggesting there was no implied free for all, he said.

In addition, non-enforcement doesn’t extinguish copyright as it can for trademark rights, according to 2014 Supreme Court ruling in Petrella v. Metro-Goldwyn-Mayer Inc.

“There’s no duty to police your copyright,” Boyden said.

Alexandra Roberts of Northeastern University said she saw merit in the implicit license argument in the context of regular noncommercial social media use. But it “doesn’t seem right” to say encouraging such use surrenders control over commercial use, she said.

“The outcome here seems like the right one,” Roberts said. “They took it right down, they weren’t assessed excessive damages, they got the minimum they could get, and vastly outspent in lawyer fees the cost of infringing this copyright.”

‘Prevail’

King’s other question to the Supreme Court has split circuit courts, his petition said. The Copyright Act says a court may award “a reasonable attorneys’ fee to the prevailing party as part of the costs,” and King didn’t prevail. But King offered Griner $15,000 to settle, and under Rule 68 of the Federal Rules of Civil Procedure, the recipient of a judgment “not more favorable” than such an offer “must pay the costs incurred after the offer.”

King’s petition acknowledged three circuits—the First, Seventh and Ninth—have held that copyright defendants can’t collect attorneys’ fees because they’re not included in the statutory definition of “costs.”

But the Eleventh Circuit ruled in 1997, “Rule 68 ‘costs’ include attorneys’ fees when the underlying statute so prescribes. The Copyright Act so specifies.” The Second Circuit has awarded fees under Rule 68 in other contexts, and its district courts have applied it to copyright cases, he added.

Covering post-offer attorney costs in such cases could provide a “practical solution” that shifts leverage in “copyright troll” cases beyond memes, Gentner said. Because “fees are so easy to get” for prevailing plaintiffs, accused infringers are often incentivized to settle even weak claims.

“It’s frustrating to tell a client ‘pay $2,500 because you’ll pay me more,’” Gentner said.

But she said she doubted the high court would buy the legal argument that in copyright cases, the Copyright Act’s inclusive definition was imported into Rule 68.

Still, the interplay of the two statutory definitions of costs “seems like the kind of issue the Supreme Court would take up,” she said.

The case is King for Congress v. Griner, U.S., No. 24-321, response 12/12/24.