At first glance, the phrases “First World Problems”, “Lolcats”, and “Success Kid” might not mean much but more than likely, you would recognize them if you saw them online where they are shared on social networks, blogs, email, or anywhere user-generated content is shared. They are popular “internet memes”– a broad term representing an “activity, concept, catchphrase or piece of media that gains popularity and spreads rapidly via the Internet.” Memes can be photographs, animated GIF (Graphics Interchange Format) files, videos, and image macros (an image with a descriptive line of text at the top and a punch line on the bottom). Successful memes are hugely popular and tend to “go viral” as they are posted and reposted across the web.
Increasingly, companies looking to capitalize off of the popularity of these memes are incorporating them into social advertising campaigns. While social networking sites make it easy to repost content with a single click, companies run the risk of copyright infringement liability for their attempts to take advantage of what appears to be “free” media. But what counts as copyrightable in the world of memes and what does unauthorized use look like?
THE COPYRIGHTABILITY OF MEMES
The creator of an original work is afforded the exclusive rights under the Copyright Act the moment she creates a work that is affixed in a tangible medium. There are two types of memes to consider when determining whether copyright protection attaches – a work that is totally original and doesn’t contain any other material protected by copyright or a work that incorporates some facet of an existing work (known as a derivative). For the former, copyright protection is fixed whether the author/creator registered or not. Ownership of copyright in a derivative meme is usually shared between the original author/owner of the media and the person that created the actual meme incorporating that media.
The reality is that many famous memes – the ones companies want to co-opt for their social advertising campaigns – are likely to have copyright protection. Once companies acknowledge that fact, they must conquer the issue of finding out who those owners are. Because of the viral nature of memes and the rapid pace at which they are disseminated and repurposed, it can be rather difficult to track down the true owner. You’d agree that it is far easier to find your photo on McDonald’s Facebook page than it is for the fast food chain to locate you. There have been several cases in which content owners have discovered the use of their images/videos by corporations and sued them for infringement.
Of course not every meme is eligible for copyright protection. Many things that trend virally as memes such as quotes, slogans, catchphrases, tags, or other short phrases are not protectable under U.S. copyright law. Ideas are also excluded from protection so for the more conceptual or fad types of memes, take “Planking” for example, there’s less risk in a company creating its own video or image around a person laying face-down in odd locations than there is in repurposing a photo of someone else planking in a particularly unique fashion.
MAKING FAIR USE OF MEMES
Some of you familiar with copyright might be asking ‘what about Fair Use?’ According to the Copyright Act, anyone who makes a fair use of a work is not an infringer. There are four determinative factors in a fair use analysis:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonproﬁt educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
However, most corporate use of memes is ineligible for fair use protection, mainly because of factors one and four. The first factor, while not conclusive, weighs against corporate use of memes. Memes are most commonly shared from person to person simply because they’re funny or outrageous. This use is noncommercial in nature. On the other hand, a corporation’s use of memes in advertisements would almost certainly count as commercial. Simply posting memes to a brand’s Facebook page, though technically not an advertisement, is arguably still commercial in nature because the corporation receives value through increased of page views, fan engagement, and good will toward the brand.
Grumpy Cat is an example of a meme turned business.
The fourth factor, arguably the most important, would look to whether the corporate use of the meme hurt the market for the copyright owner’s work. If not, then the inquiry turns to whether unrestricted and widespread conduct of the sort engaged in by the corporation would result in a substantially adverse impact on the potential market for the meme. Since they are typically shared for fun and for free, there isn’t much of a market for many memes. Owners of the most popular of the genre, however, have been able to convert their memes into licensing deals, appearance/speaker fees, books, and more.
ADDITIONAL RISKS AND LIABILITIES
Even where a company’s use of a meme isn’t an infringing use, there are other legal pitfalls to avoid such as defamation or violations of one’s right to privacy and publicity. When an individual is exposed to public ridicule or sustains some reputational injury due to a writing, picture, or other communication embodied in physical form, that person may bring a suit for libel, a type of defamation. Companies would do well to remember that although memes often use images and videos of people with humorous intent, some depictions might offend or result in unwanted attention for the subject.
Another potential issue is invasion of privacy, particularly violation of one’s right of publicity, which “prevents the unauthorized commercial use of an individual's name, likeness, or other recognizable aspects of one's persona.” Companies seeking to capitalize off of the buzz generated from memes depicting individuals should keep in mind the emotional and reputational harm that could potentially result.
While it is unlikely that the owner of a copyright will come after you if you use their meme, gambling with intellectual property law is risky, and can be very costly. People have a right to their original works as well as rights to their images are used in certain cases. All marketing is internet marketing these days and though companies don’t want to embroil themselves in legal battles over the latest cat video, they still want to take advantage of this low-cost, high-impact way to reach consumers and build their brands. So what to do?
You could post memes with non-commercial intent in order to improve chances of getting a fair use exception. However, as explained above, the value a company derives from posting a meme could be considered a type of commercial benefit. The best bet is for companies to try to make their own memes using images and videos they own or public domain content, avoiding violation of anyone’s intellectual property rights. However, memes are only memes because they are popular and shared so unless you have the social media plan to back up the sharing of those memes, you may end up spending a lot of time with little return.
The content of this post is intended as informational only and does not constitute legal advice.