Social Media and IP: Memes

In today's digital era “memes” have become an integral part of the online culture. A meme is a type of image, video, or phrase, accompanied by humorous or thought-provoking captions, referring to a particular topic or trend.

Memes can become “viral” because social media platforms allow for easy distribution of user content, causing certain memes to gain popularity within a relatively short period.

Memes can serve as an effective marketing tool in which companies raise awareness for their products and services by appealing to their target group’s emotions.

The other advantage is that, since millions of users are sharing memes on social media platforms, the creator of the meme can try to monetize it by protecting its intellectual property.

Memes can be subject to protection by copyright and trademark registration. These two types of protection are completely different and have different requirements to become valid.

Memes and Copyright Protection

A copyright is a type of intellectual property that protects original works of authorship. To obtain copyrights for a meme, the author will have to fulfill several requirements:

1. Originality: To qualify for copyright protection, the meme should be original in nature. To comply with the originality standard, the work has to be an independent creation. This means that the content cannot be copied or substantially like an existing work or else it will not be entitled to copyright protection. A meme could also be considered a derivative work if it derives from an original work but is transformed into an adaptation.

2. A Work of Authorship: Under US Copyright Law, an author is a human who creates copyrightable work. Copyright law is limited to the fruits of labor that come from the original intellectual conceptions of the author.

3. Fixation: A work needs to be fixed in a tangible medium of expression to obtain copyright protection. This means that it must be concretely recorded in a physical medium that allows it to be perceived and reproduced. The work could be written, recorded, or sculpted to comply with this requirement. In the case of memes, an image or video would be the tangible form of expression.

Once these criteria have been met, the author will be able to successfully copyright their meme, monetize their work, and enforce their intellectual property rights. This means that any other person who uses the protected meme in a commercial manner will likely be infringing on the author’s rights. Other users are allowed to share memes online as a means of expression, but not for commercial gain. Therefore, it is essential to verify if there is existing ownership and protection of the content to exercise caution and ensure that no rights are infringed.

Memes and Trademark Protection

A trademark identifies and distinguishes goods or services offered by one party from those of the other parties. Trademark registration serves to protect the brand from unauthorized use by others. Some of the requirements for memes to be entitled to trademark protection are:

1. Distinctiveness: The primary requirement for meme trademark protection is that it must be distinctive and recognizable. The meme must be recognizable and distinctive enough that people will be able to identify it by itself in connection with the goods or services; and

2. Commercial Use: The meme must be used for a commercial purpose to obtain trademark protection. Therefore, the creator should intend to monetize it, such as licensing it or selling merchandise in commerce (e.g. t-shirts featuring the meme).

Even if the meme meets the aforementioned criteria, it can still be challenging to trademark a meme due to its usual short-lived nature. As challenging as it can be, many companies are constantly trying to benefit from trademark protection and monetizing their memes. For example, “Grumpy Cat’’ achieved trademark protection for goods such as stuffed and plush toys, action figures, dolls, and toy animals based on the internet meme. “DAMN DANIEL” is another example of meme trademark protection. The trademark was successfully registered for clothing items such as t-shirts, hats, and shoes. Finally, keep in mind, that even if you can trademark your meme, limitations to using it can impact the meme’s ability to freely get shared by millions of users and thus limit its popularity.

Retaining a legal professional with plenty of experience in intellectual property law is crucial if you are thinking about monetizing a meme. If you’re thinking about protecting your internet content, don’t hesitate to contact us at: info@bizzylegal.com