Can sharing the Crying Michael Jordan meme get you sued?

ByThomas Neumann ESPN logo
Saturday, February 20, 2016

Michael Jordan is weeping, and the tears aren't likely to stop flowing anytime soon.

He's crying because the Carolina Panthers lost the Super Bowl.

He's crying because Holly Holm defeated Ronda Rousey.

He's crying because Wednesday is his 53rd birthday.

There's a good chance you're familiar with Crying Michael Jordan, the viral meme that has become a sensation online and in social media. The now-famous image was captured when Jordan was introduced as a member of the Basketball Hall of Fame on Sept. 11, 2009. That evening, he teared up during a memorably candid and edgy induction speech in Springfield, Massachusetts. It was a rare moment in which Jordan let his guard down and allowed us to see him in a vulnerable light.

Now, he's a Halloween mask.

"It just seems to have an appropriateness for so many different circumstances," said Andrew Selepak, director of the social media graduate program at the University of Florida's College of Journalism and Communications. "That face can be used for a meme for a number of different levels, whether it's sports or non-sports related. But because of the passion people have for sports, I think it has legs like few other memes that have been popular in the past."

To wit, Crying Michael Jordan has the kind of staying power that eluded the poignant but outdated "I can has cheezburger?" cat meme.

Which leads us to a crucial question:

Can you get sued for using the Crying Michael Jordan meme?

Before we answer that query, however, it's important to know how Crying Michael Jordan became a phenomenon:

Associated Press photographer Stephan Savoia, who captured the image of Jordan crying, knew he had something special back in 2009 -- but he had no idea his work would inspire an Internet sensation.

"It was the first time in maybe 40 years I had ever seen an athlete cry," Savoia recently told the Wall Street Journal. "There's a real distinction between honest emotion and what we in the business call 'jubi' or jubilation. ... Michael Jordan crying. That was a real moment."

One of the first widespread uses of the meme came in April 2012, when the Charlotte Bobcats were in the midst of a 23-game losing streak and ultimately compiled the worst single-season winning percentage (7-59, .106) in NBA history.

There was a slow drip of Crying Jordan mashups until a steady uptick began in 2014 and exploded in the past year, evidenced by this Google Trends chart.

Other performances by Crying Michael Jordan deserve Hall of Fame consideration:

Arguably the best, however, is the Crying Michael Jordan pancake with syrup tears:

Now, back to the litigation question.

The Associated Press could pursue legal action if it believes its copyright of the image has been violated. "We own the rights in our photo, which was taken in 2009," Associated Press spokesman Paul Colford wrote in an email to "We could enforce those rights depending on the use and other factors, as is the case with all AP photos."

Likewise, Jordan spokesperson Estee Portnoy recently implied that the basketball icon's camp is keeping a close eye on usage of the meme. "We haven't seen anyone using it to promote their commercial interests, which is something that we're monitoring," Portnoy wrote in an email to the Chicago Tribune.

However, many creative uses of copyrighted material are legal in this country under the principle of fair use, as outlined in Section 107 of the Copyright Law of 1976.

"The United States has the strongest copyright law in the world," said Renee Hobbs, founder and director of the University of Rhode Island's Media Education Lab. "But we also have strong protection for users. It's a fundamental point. Fair use is important to the balance of the copyright law."

A key in fulfilling the requirement for fair use is to provide added value. Did the user provide additional context in some way? Or was the copyrighted material simply used as a substitute or replacement for the original?

In other words, if you are creatively modifying the work -- whether by adding witty text or photoshopping it onto another image -- you are almost certainly not violating copyright law.

"It's very situational and contextual," Hobbs said. "The Michael Jordan meme is legal because it's a transformative use of the original material."

Here's the kicker: Not only are you not violating copyright law in such instances, but your work has now become copyrighted as well.

"A work is automatically copyrighted at the moment of creation," Hobbs said. "If you make a transformative meme, it's copyrighted."

All of the above boils down to this: It's unlikely that a copyright suit over Crying Jordan would be successful.

Still, anyone can sue anyone else for anything. Like most things in life, there are no guarantees.