Can memes be Intellectual Property?
The meme is now very well established as an element of pop culture, but it is also difficult to define succinctly. These days, a meme can be anything from a silly dance in a YouTube video to the text from someone's viral tweet. Or it can be the sudden trend of millennials recording themselves singing centuries-old sea shanties.
Evolutionary biologist Richard Dawkins coined the term "meme" in 1976 to describe a behavior transmitted through culture in a manner analogous to genes in biology. Like genes, memes self-propagate until they become pervasive. From our perspective, the key question is whether or not the modern meme is or can become Intellectual Property (IP).
A brief history of the meme
Memes go far back into the history of humankind, possibly even more than 2,000 years. But arguably, the oldest meme with a cultural impact we can qualitatively assess is "Kilroy was here." The slogan, typically accompanied by a minimalist cartoon drawing of a long-nosed man peering over a wall, was scrawled as graffiti on countless European walls by U.S. soldiers during the Second World War.
In the internet era, many memes are simply images with funny one-liners added to them. Virtually any web user can create new versions of them using free resources, giving us endless variations on "Distracted Boyfriend." But they can also be:
Copyrights under the surface
In most jurisdictions, copyrights automatically apply to various types of works when specific requirements are met: The author must be a qualified individual (i.e., one who is residing in, domiciled in or a national of a Berne Convention country) and the work must be original. Since most countries are signatories to the Berne Convention, the majority of meme creators would be considered qualified authors.
Meme-sters everywhere will be glad to hear that, generally, a fairly low level of originality is expected for a work to qualify for copyright protection. The work must be created with the author's own labor, skill and effort — and ideally, should not be copied from another source unless it somehow adds value to that original source. Even a scribble on a photograph could arguably constitute an "original work."
Memes are often transformative works that copy portions of other media. But the mere fact that parts of a meme are reproductions of earlier work does not necessarily prevent aspects of it from being separately protected. Copyright can subsist in facets of a meme that are "original" by dint of being novel or by having transformed an earlier work. Commonly, these constituents are:
Copyright would vest separately in each of the works listed above — depending on the specific regulations of the relevant jurisdiction(s). So far, so good. The real sticking point is that not all the copyrighted aspects of a meme necessarily belong to the same person.
Just as the components of a meme can belong to different authors, the test for copyright infringement must be applied separately to each work embodied within a meme. For example, one person can own the rights to the meme's catchphrase as an original work of literature but still infringe copyright in another person's photograph or drawing.
Many image memes are based on stock photos or illustrations. Provided that the copyright owners actually agreed to the terms, anyone can pay to license these images or download them freely (depending on the particular service provider). The licensee could then manipulate the imagery to create a meme. As an amusing addendum to this type of meme: Antonio Guillem, the Barcelona-based photographer who took the "Distracted Boyfriend" picture and sold it to Shutterstock, revealed he did not know what a meme was at the time his work was exploding across the internet.
If an image used in a meme was individually licensed, purchased as part of a service subscription or obtained for free using a Creative Commons-style license, there should be no copyright issue: The photographer or artist has been appropriately compensated.
In the case of a person who creates a wholly-owned meme for the purpose of making it go viral, it could be claimed that the reproduction of the meme will not infringe copyright due to an implied license. A person who shares content on the internet with the obvious intent of having it be spread and replicated has arguably granted a tacit license for its use.
Exceptions to the rule
The exemptions of "fair use" (United States) and "fair dealing" (United Kingdom, Canada, Australia) allow limited use of copyrighted material on grounds of commentary or critique, or for academic research. Unless a statutory right is being provably exercised, unauthorized reproduction of any artistic work, even without the goal of commercial gain, would still constitute copyright infringement in most instances. Duplicating a famous painting and adding a quote might not be sufficient to avoid infringing copyright on the underlying painting. This is because one could display the quote (which could be considered free speech) without any unauthorized reproduction of an earlier artistic work. Conversely, it could be argued that juxtaposing the artworks is necessary to convey the intended message properly. No one said copyright law was easy.
The stamp of approval
With all that said and done, copyrights are not the only IP rights relevant to memes. Though not often done, a meme can be protected and registered as a trademark if it is used to indicate the origin of goods or services. The owner of a trademarked meme can stop any unapproved use of that work in the course of trade involving identical or similar goods. The owner can also object to the use on the marketplace of memes identical or confusingly similar to their own. Furthermore, anti-dilution and tarnishment provisions can prevent unlicensed use of a meme in relation to goods or services dissimilar to those for which the trademark is registered. Memetic phrases or slogans lend themselves more easily to this kind of IP protection.
With all these legal elements at play, it can be easy to miss the wood for the trees. Remember how we said it was challenging to provide a concise definition of a meme? It is best to think of it not as a style of expression: irreverent, facetious or absurd, but as a mode of expression: an imitative, collective exercise in communication. Exclusive rights, by definition, curtail this open exchange, harking back to the implied distributive license we mentioned earlier. In the end, a meme that cannot be shared is not a true meme at all.
Are memes worth the trouble?
Memes have tremendous money-making and fundraising potential. A recent copyright dispute over a popular (and undoubtedly lucrative) meme revolved around a 0.34-second clip of audio created in 1999. Tommy Tallarico, longtime sound designer and CEO of Intellivision Entertainment, reached an amicable agreement with the developers of the Roblox video game over the experience-defining "Oof" sound. How could such a short clip be of note? The answer is simple: When it holds iconic status among an audience of approximately 150 million users. Considering that the sound is now available to players for an additional cost of around $1 USD, the monetary value of less than one second of audio recorded more than two decades ago is potentially substantial indeed.
Also, consider the photograph of U.S. Senator Bernie Sanders wearing some idiosyncratic mittens at President Joe Biden's inauguration. It went viral, ultimately raising $2 million USD for charities in Sanders' home state of Vermont through merchandise sales. Musicians including Blanco Brown and Lil Nas X leveraged TikTok crazes based on their songs to boost their radio and streaming airplay significantly. In essence, memes can behave as traditional marketing tools. When they do, they lose the exemptions of fair use or fair dealing but can eventually become eligible for IP protection.
In theory, many media types that constitute memes can be protected as IP as long as the work is original or used according to agreed-upon licensing terms. Deliberately manufacturing memes is much more complex and perhaps self-defeating, as their origins are often spontaneous, ephemeral and reactive. For a business to achieve this (without the attempt blowing up in the company's face) requires close collaboration between creative and marketing teams and usually more than a bit of luck.
If you are fortunate enough to capture lightning in a bottle – whether by accident or design – get in touch with Dennemeyer's experts immediately to secure IP protection for your hit meme!
No matter their industry, all commercial assets are wont to be touched by time and the fickle winds that varyingly drive and buffet the marketplace.