An internet meme is an activity, concept, catchphrase or piece of media which spreads, often as mimicry, from person to person via the internet. Whether a photo, video, person, animal, song, action, GIF or anything else, memes are appearing everywhere, and with the strength of social media growing exponentially over the past decade, they’ve become a bit of a phenomenon. Novagraaf’s Claire Jones examines the IP issues.
Take a photo, add some wording and boom, you’ve created a meme. If you need assistance, there are web tools such as www.memegenerator.net, which make it easy to compose your own memes in minutes.
Memes can come from anywhere and each has its own unique story. The website www.KnowYourMeme.com specialises in tracking down memes and the stories behind them, sometimes right down to the creator, artist or photographer. Well-known memes include the ‘Socially Awkward Penguin’ , ‘Futurama Fry’ and ‘First World Problems’. They epitomise the popularity of this internet phenomenon: funny, shareable, relatable, easy to read, familiar and to the point; and, like all forms of creativity, there is IP in them too.
What are the copyright implications?
Copyright gives the creators of artistic works the rights to control the ways in which their materials may be used. The rights include broadcasting, public performance and, most importantly, copying and adapting. The creator has the right to be identified as the author and to object to distortions of his work.
When someone superimposes wording across an existing photograph, this is likely to constitute copyright infringement, as it is making a derivative work and copying.
In the UK, the right to parody is covered by the UK’s Copyright and Rights in Performances (Quotation and Parody) Regulations 2014. In October 2014, the UK implemented the EU Copyright Directive and amended the Copyright, Designs and Patents Act 1988 to add a new Section 30A (Caricature, parody or pastiche). This says:
(1) Fair dealing with a work for the purposes of caricature parody, or pastiche does not infringe copyright in the work.
(2) To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of this section would not infringe copyright, that term is unenforceable.
In other words, ‘fair dealing’ (i.e. for the purposes of non-commercial research or study, criticism or review or reporting of current events) provides an exception to copyright.
Who owns copyright in a meme?
Copyright ownership is likely to include the owner of the picture and the person who created the meme using that picture.
Getty Images, the well-known stock photo agency, is well known for fiercely protecting against copyright infringements, enforcing IP rights and demanding money from people who use images from its library in memes. Getty uses automated software that searches for images that appear to have been used without appropriate licence fees, flags them and contacts the alleged infringer. Such correspondence has become so frequent, the letters have come to be known as the “Getty Letter” or “Getty Extortion Letter”.
Using a meme without permission can also involve a substantial risk, and it is worth trying to track the owner of the meme to avoid any IP property issues. However, it can be very difficult to track, or indeed prove that you are the original author when something that is shared and modified by millions of people.
One of the best-known memes, the Socially Awkward Penguin has been the subject of numerous copyright actions. The picture of a penguin on a blue background is superimposed with text describing socially-awkward scenarios. However, the original penguin picture is the property of National Geographic, and National Geographic has pursued and settled multiple infringement cases involving the meme.
Sharing or advertising?
There is a real difference between someone adding to the ‘culture’ of memes and someone attempting to be opportunistic and monetise them. If you are just sharing on social media, then you will probably be ok. Most creators are happy about their newfound meme status and are unlikely to object to non-commercial use of their work. Some meme owners may file takedown notices, but these would appear to be a rarity. Even where there are objections, attempting to prevent someone posting a meme on social media is likely to be quite ineffective (trying to control non-commercial uses), but could also be unlawful (in that it stops fair uses of the work).
Constantin Film has issued a number of takedown notices over parodies of its 2004 film Downfall, in which the Adolf Hitler character rants about a range of topics from his bunker. YouTube was compliant with a number of takedown requests on its site.
Do you want to use a meme to market your business?
If the use of the image is directly or indirectly related to your business or a commercial endeavour, it is important to make sure that you have the appropriate licences in place for commercial use. Such images can be obtained from stock photography companies (such as Getty, Shutterstock, BigStockPhoto etc). An alternative is to utilise one of the many sites where you can find free images (such as SXC, StockVault or MorgueFile).
However, be wary: The creation of new memes in marketing can be a bit of a minefield, especially if companies are using existing copyrights to create new memes. If the use is commercial, it is much less likely to be seen as ‘fair’, but also could be seen as damaging. In addition, companies in the public field will also make a much better target for a lawsuit. As many are aware, bad publicity can undermine reputation, influence and trust in a brand. And don’t forget advertising standards and comparative advertising, not to mention privacy and image rights…
‘Memejacking’ is where brands use existing memes in their own marketing strategy. It can be a risky move as brands could be seen as ‘trying too hard’ and not quite be able to tap into the viral wave of the meme. Whether memejacking or creating your own meme, any engagement with audiences through memes will often depend on how in-tune the brand is with their customers and it will really pay off to know the social media demographics.
Can memes be protected as trademarks?
One issue with filing for a trademark to protect an internet meme is the speed of the rise and fall of that meme. A meme can go viral in a matter of minutes, but often will have a narrow window of fame, before another comes along and takes it place.
This has not stopped companies seeking trademark protection however, with well-known examples of registrations, including GRUMPY CAT and DOGE. Where trademark protection is in place, there is the risk that using a meme on a product or for advertising could lead to a claim of trademark infringement, as consumers could be confused as to the source of a product.
Here today, gone tomorrow?
Given the fast paced and fickle nature of the internet, many memes are fleeting and will have a very short lifespan. In addition, in instances where companies or individuals have requested removal of memes, the action appears to spawn new parodies popping up. Downfall spoofs have been continually created for years, and Axl Rose of Guns n Roses fame has found that his objections to memes on his weight gain have only fuelled the fires more.
Companies should remember that IP laws, including those of copyright, will apply to social media in the same way as other fields, and what can be acceptable for an individual for the purpose of sharing a funny meme with friends is not going to be seen as acceptable for companies looking to make a profit. If you are using memes for commercial purposes, ensure too that there is no implied endorsement.
Ultimately, memes are a form of parody and satire, and are becoming a secondary language in social media, with more and more people using visual images to communicate. Brand owners may find that while it may be difficult to control or limit a meme, encouraging its use or using counter-memes to limit any potential damage could prove beneficial and help to strengthen the relationship between brands and their target audiences.
For additional questions or advice on copyright or the commercial use of memes, speak to your Novagraaf consultant or contact us below.
Claire Jones is a Trademark Attorney in the London offices of Novagraaf