At the risk of a "well, actually" moment, memes are more than the commonly-understood picture-with-words-on-it. The word meme refers to the spread of ideas and cultural phenomena. The return of scrunchies to the runway, and now to the shopping centres of Auckland, is a meme.
But it's really only the viral picture memes that have any interest to lawyers. Why? Because in many cases, the meme infringes copyright. Further use of the meme (the "derivative work") is infringement too - of the original, and of the derivative work.
The images have an owner
Every photograph, cartoon, or graphic, has an owner. While it might be on the Internet, it's generally not there for anyone to just use for free. So the person who creates the meme from the photo or graphic, is probably copying without authorisation.
There is no fair use or parody defence in New Zealand
Yes but it's for the lols, and so it's a fair use, right? Well, New Zealand doesn't have a "fair use" defence. We have a "fair dealing" defence and, as we have written about before here, it's very limited. Using another work for the purpose of parody or satire is not a defence in New Zealand - see our recent article here. So what might be defensible in the States, isn't defensible here.
Copyright owners do enforce their rights against memes
It's a also myth that rights-holders never bother to enforce against meme use. They do - especially the big agencies. Getty Images, in particular, is known to send demand letters if it owns the rights to a picture that is turned into a meme. That shouldn't be unexpected - it's literally their business to earn money from the licensing of images.
The copyright infringement meme
What is interesting is that despite plenty already being written on this topic, the online hive-mind tends to studiously ignore any concern about copyright. Most casual vloggers, bloggers, and meme-makers don't give a second thought to snipping a picture, or using someone else's song, without paying for it. This, I think, is the meme of memes: a cultural phenomenon passed from one person to another.
(The image in this article is adapted from the photo by Matthias Asgeirsson from Iceland (Richard Dawkins on Flickr) [CC BY-SA 2.0 (https://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia Commons)