United States: Do You Even Meme Bro? The Law Of Internet Memes

Last Updated: March 14 2017
Article by Travis S. Crabtree

You know you've chuckled at a few of them–the ubiquitous internet meme. But, have you ever wondered whether all this sharing, changing and going "viral" is legal.

Protecting or commercializing your meme

If you create or are the subject of a meme, it can be difficult to commercialize it or protect it. There are generally two "rights" that can be associated with a meme—trademark and copyright.

Copyright: Copyright protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. As the person who created a work, you have a copyright regardless of whether you file it with the U.S. Copyright Office. To sue over a copyright, you need to register it, but your lack of registration does not otherwise lessen the right to claim something you created as yours. If you take the picture, then generally you own the copyright. But, if you add a few new words to someone else's picture, your addition does not likely transform ownership to you.

The point of internet memes, however, is that they be shared. If you are aggressive and enforce your copyright, the meme won't become, well, a meme.

Trademarks: A trademark protects a word, phrase, symbol and/or design that distinguishes the source of the goods. These are brand marks that give a particular product or service a distinct identity or help consumers distinguish between various products or services. Could your meme be a source indicator for your goods or services?

It does not happen often, but it has happened before. Grumpycats.com turned its meme into a business by selling books, shirts, posters and even Christmas decorations. The trademark holder is the family who originally took the picture of the cat and posted it online. The original trademark registration listed the goods associated with the mark Grumpy Cat as "stuffed and plush toys, action figures, dolls and toy animals, all based on a real cat that is an internet meme."

So what about the risk of using memes?

Most creators launch their memes for the love of the meme and want people to share and tweak. But, there have been claims in the past. Getty Images, which has a reputation for strictly enforcing their intellectual property, has enforced the use of one of its images in a meme.

The Socially Awkward Penguin was a short-lived meme that was shared and people would often change the text to include awkward sayings. The original image of the penguin came from a National Geographic photographer and Getty Images enforced their rights and demanded money from people who used the image in memes.

But what about fair use?

Fair use is the most obvious defense to a claim. The problem with fair use is that there is no bright line test and no lawyer can guarantee you that a court would find that your use of the meme was a fair use.

The fair use factors include:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Because most memes are meant to be parodies or include critical comments in a non-commercialized way, fair use will likely save the day. If you use it in a commercial way in advertising or try to sell items using someone else's images for your meme, then you will likely find yourself in trouble.

For the most part, internet memes are harmless fun. If you are sharing with your friends and commenting on current events, you likely don't have much to worry about. Share the Salt Bae image to celebrate your buddy's epic bottle flip. On the other hand, if you are using a meme to sell products, you may want to think twice.

If you created the original image that has gone viral and you want to sell products or otherwise monetize it, you may want to take the right legal steps to protect yourself.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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