Internet memes spread like wildfire online and capture the core essences of Internet culture. “Meme” is a broad term that generally includes any image, video, text, or other online content that is usually humorous or light-hearted and shared with slight modifications. They are frequently jokes built on sarcasm, satire, or parody, and typically use different images or snippets (like GIFs) from various media available on the internet. While Internet users create memes using images taken from creative works or private life, it raises the question – who is the rightful owner of each meme?
Intellectual Property Rights Available to Memes
Meme culture thrives in the grey areas of intellectual property protection. Still, as with nearly all original creations, copyright can arise automatically in a newly-created meme, provided the content is an original work of authorship, has a minimal level of creativity, and is fixed in a tangible form of expression. Copyright law gives original creators of memes, or the owners of the media used in the underlying meme, the exclusive rights of reproduction, modification, distribution, performance, and display. Therefore, the viral spread of a meme may sometimes constitute infringement of a copyright owner’s rights as the original creation is modified and then displayed, distributed, and reproduced when posted and reposted.
In addition, businesses utilize memes as marketing tools to grasp the attention of buyers. When memes are used for a commercial purpose, the rightful owner of the meme may acquire a trademark right. For example, the creators of the 2016 “Damn Daniel” YouTube video, which went viral with the famous line, “Damn Daniel, back at it again with the white vans,” took their meme straight to the trademark office. The content creators acquired trademark registrations for the meme in the marks: DAMN DANIEL and DAMN DANIEL BACK AT IT AGAIN covering clothing and entertainment services.
Is an Improper Use of a Meme Actionable?
Generally, posting and sharing memes online as a form of expression is not actionable and is usually protected under the First Amendment and the doctrines of fair use. However, when a meme is posted with an intent to profit from the expression (such as printing the meme on shirts and selling the shirts) without permission or license from the rightful owner, such activity is far less protected.
Lawsuits have been filed by owners of memes to enforce their rights, but many result in early settlement. In 2013 the owners of the once (still?) popular “Nyan Cat” and “Keyboard Cat” memes asserted their copyright and trademark rights against Warner Bros. and 5th Cell and prevailed for the unauthorized inclusion of the Keyboard Cat and Nyan Cat memes in a video game without permission or compensation. Pursuant to the settlement agreement, these cat memes can continue to be depicted in the video game under license.
Takeaways for Memelords
Generally, if you’re sharing a meme as a means of expression on social media or elsewhere on the Internet, infringement is not much of a concern. That said, any success monetizing memes owned by others could convince a copyright owner or trademark owner to pursue legal action. Therefore, it is important to verify ownership and other intellectual property considerations, such as the existence licensing agreements, when selecting unoriginal content used for commercial gain (e.g., advertising and other marketing efforts).
If you have any questions about this post or any related issue, please feel free to contact me at firstname.lastname@example.org. Ben thanks Campbell Flaherty, a summer associate with Norris McLaughlin, for her contributions to this post.