Technology: Internet memes pose legal questions

In-house counsel must understand the implications of viral media

In general, a meme is an idea, a thought or an element of a culture (an image, quote, symbol, joke, etc.) that spreads throughout society from one person to another virally, i.e., in school, work or the media. Internet memes are typically “viral” videos or graphic images spread over the Web that include humorous phrases or dialogue added by the creator of the meme. What are the legal implications of Internet memes for your company, either when it desires to use a meme for advertising or marketing purposes or when a meme is circulating that identifies your company?

First, what if your company wants to create a meme to promote its business? In general, the meme should go through the same clearance process as any other advertisement created by or for your company.

If the meme consists of a photograph or video, you have to be concerned about copyright. Of course, just because a photograph has been posted on the Internet, e.g., on Facebook, Instagram or Pinterest, does not mean that it can be reproduced. Even that frowning cat photograph could be the subject of copyright, likely owned by the person who took the photo. The same is true for videos: Someone owns the copyright in that home video and, of course, copyrights in commercial motion pictures belong to the movie studios or producer(s). Before reproducing a photograph or video clip for a meme for marketing purposes, you should be sure that you have an appropriate license from the owner of the copyright in the photograph or video, unless your meme comes under the “fair use” doctrine.

The “fair use” doctrine provides a defense to a claim of copyright infringement. The Copyright Act lists four factors to determine whether a use of a copyright work is fair, none of which is determinative: the purpose and character of the use; 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.

As opposed to Internet memes created by fans, individuals, etc., a meme that a company creates and distributes for marketing purposes has a commercial  purpose, which weighs against fair use. If the nature of the copyrighted work is more factual and topical (e.g., a picture of a historical figure), rather than something more creative (e.g., a clip from a motion picture), this will favor fair use. If the meme includes a short clip from a longer film, the amount and substantiality of the use factor will favor fair use; however, this may not be the same when the meme consists of a single photograph.

As for the last factor—the effect of the use upon the market for, or value of, the copyrighted work—because a meme does not replace or compete with the original, it is unlikely to have an economic effect on the copyrighted work. Indeed, some argue that featuring a clip from a longer film in a meme could spur interest in the full film; however, the owners of the film “Der Untergang,” from which a clip of Hitler was taken to create one of the more popular and enduring Internet memes known as “Downfall,” say that the memes have not resulted in increased DVD sales.

Therefore, with only one or two factors indicating fair use, use of a meme incorporating a copyrighted photo or video as a marketing tool could be risky and should not be undertaken without consulting your legal counsel.

Aside from copyright issues, if the meme shows a person, such as an individual (e.g., from an old yearbook) or a celebrity, the meme could violate the person’s right of publicity or right of privacy. The right of publicity allows celebrities to control commercial uses of their images, and the right of privacy likewise prevents use of a person’s likeness for commercial purposes. Accordingly, you need to have a release from any people who appear in the meme.

If your company plans to use an existing meme rather than creating one on its own, you need to consider all of the above issues, plus you need to consider whether the creator of the meme owns a copyright in it. If the creator of the meme added some dialogue to a photograph or video clip, the meme may be copyrightable as a derivative work or a compilation. However, the Copyright Act does not protect short phrases, e.g., quotes, catchwords and slogans, so the creator may not have contributed anything copyrightable to the meme.

What if, on the other hand, a meme is circulating which refers to your company or includes your company’s intellectual property without permission? If the meme uses copyrighted material owned by your company, you need to consider the issues discussed above.

If the meme incorporates your company’s trademark or logo, you can consider an action for trademark infringement or dilution. However, not all unauthorized uses of your trademark will be infringing. If the unauthorized meme consists of political speech (e.g., use of “Smokey the Bear” to protest the Forest Service’s timbering policies) or is a parody (e.g., a pornographic parody of L.L. Bean’s catalog entitled "L.L. Beam's Back-To-School-Sex-Catalog”), it may be protected under the First Amendment or as a “fair use.”

While some say there is no such thing as bad publicity, if the meme is offensive or critical of your company, you need to carefully consider whether to take action against it. Assuming that you can even send a demand letter to the source(s) of the meme (i.e., it hasn’t gone viral yet), you could find your cease-and-desist letter posted on the Internet, unintentionally calling more attention to the meme than it would otherwise receive. Before taking action against such a meme, you should consult your PR department in addition to your legal counsel.

Contributing Author

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Andy Goldstein

Andrew L. Goldstein is a partner in the Corporate Practice Group of Freeborn & Peters LLP. His areas of focus include multiple areas of intellectual...

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