Memes have taken over the internet in recent years, becoming a widespread phenomenon. Despite this, the intellectual property associated with them has received little attention, causing many people to consider it as a non issue.
So, what is a meme?
While an outright definition of a meme is hard to nail down, a “meme” is a piece of media, often humorous, that spreads rapidly through the internet. Generally a picture, GIF, or video that has been modified with text or the overlay of other images for the purpose of sharing humor online, typically on social media, they are used prolifically across the internet, both within private internet conversations and more widely. It's no wonder that they spread so quickly.
However, when it comes to memes there is more than meets the eye, and they have the potential to set off a challenging copyright quandary. The production and/or effects of a meme may not need much thought on the part of the average person, but they do carry some liability, as this article goes into great depth.
The big question is, do memes violate copyright?
If a newly produced meme is the author's original intellectual production, copyright (a type of intellectual property protection), like other artistic creations, may immediately arise. Owners can utilize copyright to prevent infringement, or the use and exploitation of their work, by other people or businesses. The creator of the artwork is often the owner of this copyright and has the legal authority to sue anyone who uses it without their consent.
Nearly every meme is based on previously published content to boost its relatability. In this situation, the original author has used up his right to first public appearance, and the memer may invoke the fair use theory as a defense. However, if the 'memer' uses material from an unpublished work, the fair use defense will not be valid.
Memes are often made for amusement and recreational purposes; there is no indication of any commercial value or financial gain. As a result, the majority of memes adhere to the fair use doctrine's first criterion. Without the necessary authorization from the owner of the copyright work, any meme generated to earn income or for promotional reasons would, nevertheless, be considered commercial exploitation. In such circumstances, the meme creator is not entitled to any defense under the doctrine of fair use.
The majority of images, videos, and other pieces of content that can be discovered online can only be used with the owners’ permission and subject to strict rules and fees. There are countless websites that provide extensive collections of "stock" items for usage by anyone willing to pay a nominal fee and follow the guidelines of the relevant license.
Commercial purposes and copyright issues
If you're just sharing a funny meme on social media, generally this won’t be much of an issue. However, if you start using your meme for profit, such as through the marketing channels of your business, it can begin to draw the notice of the copyright holder of the original photo or video. A cease and desist letter or a lawsuit for damages could be sent to you if you haven't verified that you have the legal right to utilize the original materials.
Although the majority of users sharing memes online won't be doing it for profit, this doesn't mean that they aren't actually violating the copyright of a lot of the materials they utilize. Even though they have the option to take legal action against some or all of the unauthorized users, the owners of the copyright in such may decide not to do so in the vast majority of instances because it would be pointless and exhausting to use a whack-a-mole strategy against people who aren't using the content for commercial purposes.
However, it's crucial to make sure you've investigated the ownership and copyright situations in regard to all the content you use if you're a business considering using a meme (or any other content you don't own) on your next LinkedIn post or marketing campaign. It's vital that you respect the copyright of others since, as a business, you have a brand to preserve and resources or insurance to cover damages for infringement claims, making you a far bigger target than the average person sharing a picture with friends on Facebook. Even if you do license an image for usage, you should carefully examine the terms to ensure that you have permission to use the image for commercial purposes.
A notice titled "Advisory on memes and copyright law" was published last week by Kenya's government agency in charge of copyright issues, the Kenya Copyright Board (KECOBO), to let the public know that in its opinion, memes are adaptations of works that are protected by copyright and may only be created with the permission of the relevant copyright owner of the work from which a meme is to be generated. KECOBO also pointed out that, occasionally, meme-making materials may be in the public domain or distributed under a creative commons license. As a result, corporate entities should think about completing due diligence on the legality of images or videos before being persuaded to engage in the fun.
The Takeaway
Meme users should always bear in mind that the original image or video used as the basis for the meme is very likely to be protected by its own pre-existing copyright. The copyright in the original materials may be owned by the person who created them, or that person may have sold their rights in the materials to another person or company. If you use the original copyright materials without obtaining the owner’s permission, you will be infringing that person’s copyright, and may be liable to pay damages for that infringement.
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