Viewpoint: Memes from a lawyer’s perspective
Memes are pictures and videos that circulate the internet, Facebook and Twitter and occasionally go viral. They rarely have copyright acknowledgement and it’s often impossible to find out who created them or who may have rights in them.
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Clive Halperin
Intellectual property partner
GSC Solicitors
Sometimes they’re parodies of someone else’s work. In other cases they may be simply cartoons, pictures of cats with slogans, or even dancing babies.
However, as with all creative work, someone will have created the original meme or its underlying content. So as long as they qualify for copyright protection, that person will own rights in the meme and the underlying work in the same way as the Walt Disney Company owns rights in Mickey Mouse. Every reproduction of that meme is a potential infringement of those rights, if done without the permission of the rights owner, and can give rise to a claim.
Great care should be taken if using a meme you haven’t created without the author’s permission as there is a real likelihood of infringing someone’s intellectual property rights.
The fact that the meme’s creator allows the meme to be freely distributed does not mean that it can be used for commercial purposes. Even licences such as Creative Commons allow the rights owner to restrict commercial use.
In some cases the risks may appear to be low as the rights holders may never find out (the meme may have been created in a different territory where the advertising is unlikely to be seen). Even if the author of the meme does find out, they may not be able to prove that they were the creator of the meme (essential for a claim) or that your version infringes theirs.
But these risks are difficult to assess in advance, even if you do know the origin of the meme.
Of greater concern is the possibility that the meme includes copyright material owned by someone else such as a photographic library or cartoonist who, although aware of the meme, is only able to take action once they see commercial exploitation of that image and thus have an identifiable target that is worth suing. Production company Constantin Film is known to have issued takedown notices over parodies of its 2004 film Downfall [featuring Adolf Hitler in a rage over topics such as video games]. Had the clip been used to market an identifiable brand then it might have sued.
And what if the meme includes or refers to a famous character, celebrity or other brand? Even if you felt you could take a chance on using the meme, care should be taken. If suggestions of endorsement arise, this could give rise to ‘passing off’ claims.
Advertisers should also note the advertising standards codes and the laws on comparative advertising as well as privacy laws and so-called image rights.
