14 Dec CAN YOU OWN A MEME
One simply does not go through life without sharing a meme. Memes are a cultural sensation and they provide a means by which satirical humour overwhelms social media. It is virtually impossible to use the internet without being exposed to memes. They’re enjoyed and shared by everyone, be it the young, the old, the rich, the famous and those far and wide.
It’s as simple as taking a photo, adding a caption and voila, just like that, your meme can be a global viral hit. Undeniably, memes have become a part of pop culture, a way in which we reflect our emotions and thoughts in real time. Well known memes include the ‘Bird Box’ and ‘Pikachu’ memes.
What is a meme?
A meme can be an idea, style, activity, behaviour, video, catchphrase or GIF which spreads from person to person using the internet.
Can you ‘own’ a meme?
Memes raise a number of copyright issues. When dealing with memes, there are two ‘works’ which are important: the original work such as the photograph or video which the meme is based on and the meme itself which is an adaptation of the original work.
Copyright protects the creator of the original work by ensuring they have control over the way in which the work is used and disseminated. The photograph or video on which a meme is based is known as the original work and copyright subsists in these. A copyright owner has control over the reproduction and adaptation of these works.
Furthermore, copyright may be enforced not only in the original work but in the meme itself. A meme can be categorised as a derivative work as it derives from the original creation. Memes are adaptations and adaptations are protected as ‘works’ in copyright law. Therefore, it is possible to have intellectual property in a meme itself.
Generally, only the owner of the original copyright work can make adaptations and so it is usually this owner who can enforce the copyright in memes. Therefore, unless a meme is made by the person who owns copyright in the existing photograph or video, the meme may technically be an infringement of copyright.
To simplify, if the owner of copyright in the original work is different from the person who created the meme, the former may want to enforce copyright infringement against the latter. The meme may be an infringement of copyright in the original work since it is not the owner of the copyright work which has created the meme. Bringing infringement proceedings against the person who created the meme is likely to be an issue, however, as it is not exactly simple to trace this person. Memes are shared thousands and sometimes millions of times and determining the actual culprit (originator) behind the creation of the meme is difficult.
Contrastingly, where the owner of the copyright in the original photograph or video is the person who has created the meme, a different issue arises, enforcing copyright infringement against others who use or share the memes for commercial gain.
When you share a meme, are you infringing the owner’s copyright?
For those of us simply sharing memes on social media and enjoying them for our own laughs, we should be just fine! However, using memes for profit-making may lead to copyright infringement. For instance, if you use a meme on your Facebook business page or company website, you may be in breach of the intellectual property rights in the meme if the purpose of using the meme is for financial gain.
An example is the use of the ‘Socially Awkward Penguin’ meme. National Geographic owns copyright in the Socially Awkward Penguin and surprise, surprise…they’ve been socially awkward about people using it. Getty images, National Geographic’s licensing agents, have been on a quest to prevent copyright infringements and obtain compensation from websites using its memes.
The doctrine of ‘fair dealing’ may provide a defence to those who create or share memes without the owner’s permission. Fair dealing refers to a person’s ability to use a copyright protected work for certain purposes such as for research, parody, education or even criticism, provided that the way in which the copyright work is used is fair.
Whether the treatment of the work is fair, will depend on various factors such as the purpose for the use of the copyright work, how much of the original work has been taken, and whether the meme will be used for commercial gain. If a meme is used to generate profits, the fair dealing defence is unlikely to apply.
Can memes be trademarks?
It is a hard task to trademark a meme. Memes evolve, with the text or catchphrase on the image or video changing constantly. This change challenges the notion that memes can be trademarks. However, this has not stopped the influx of companies trying to gain trademark in memes. Several companies have gone on to trademark the name of the meme itself.
Two words – Grumpy. Cat. The company behind the Grumpy Cat meme has been successful in trademarking the name ‘Grumpy Cat’ for goods such as toys. Similarly, the founders behind the famous ‘Doge’ meme have been successful in trademarking the name ‘Doge’ for clothing.
These examples show the possibility that memes or at least the name by which a meme is referred to may be trademarked. Nevertheless, this depends on the context and each case will turn on its own facts.
What cautionary steps should you take when using a meme?
It is important to be wary of who owns the intellectual property in both the original work and the meme and whether they may seek compensation for infringement. In considering this, you must remember that if you use a meme to generate profits, this is likely to raise red flags. It is advisable to refrain from posting memes on blogs or as part of marketing campaigns for profit as this can infringe the meme owner’s intellectual property rights. You should consider obtaining a licence to use the meme to prevent any claims for infringement.
One thing is certain, at this very second, while you read this, someone is sharing a meme on social media. Memes are a growing part of our interactions with one another and like all growing phenomenon, legal implications will arise. Meme owners are now more aware of the need to protect their intellectual property in memes and consequently, intellectual property rights now have a greater role to play in the world of memes than ever before!
Disclaimer: This Document Provides General Guidance Only And Nothing In This Document Constitutes Legal Advice. Should You Require Specific Assistance, Please Contact Your Attorney-At-Law.
This Article was authored by Jeanelle Pran, Associate at M. Hamel-Smith & Co. She can be reached at email@example.com.