I can haz memes in advertising?

Grumpy CatWho owns the copyright for memes and can advertisers make use of the internet trend? Solicitor Alison Eveleigh lays down the law in a piece that first appeared in Encore.

It’s safe to say that today, one does not simply read a funny meme and not share it with friends. The best memes are shared hundreds of thousands of times and have become a popular marketing tool for brands. For example, Virgin used the meme known as ‘Success Kid’ in a marketing campaign in the UK and everyone’s favourite ‘Grumpy Cat’ is now appearing in TV commercials for Friskies.

Brands are recognizing the power of memes to attract attention and facilitate engagement. The problem is that using memes for commercial purposes could violate intellectual property laws.

Several different people may hold intellectual property rights in a meme including:

1. The creator of the meme may hold intellectual property rights (including copyright and/or a trademark) in the meme’s words and images. For example, the owners of Grumpy Cat (real name: Tardar Sauce) have applied for trademark protection for the name ‘Grumpy Cat’ and her image;

2. If the meme is based on a separate piece of work, it may incorporate
the copyright, trademarks and other intellectual property rights of a third
party. For example, Futurama Fry, which uses an image taken from the TV
show Futurama.

To use a meme in an advertising campaign, it is best practice to ensure you have a licence from the creator of the meme itself and a licence from the holder of rights in any underlying work. Before using ‘Success Kid’, Virgin sought permission from the image owner (in this case the child’s mother), and paid for use of the image. Untangling the web of ownership in a meme might be complicated, but it is a necessary #firstworldproblem. While liability for copyright infringement is subject to a number of fair dealing defences, including:

1. Fair dealing for criticism or review;

2. Fair dealing for news reporting;

3. Fair dealing for parody or satire,

it is unlikely that the use of a copyrighted work for commercial or profit-making purposes would attract these defences.

Meme owners are unafraid to enforce their rights. Movie giant Warner Bros is currently being sued by the inventors of the popular memes Nyan Cat and Keyboard Cat. The owners allege that Warner Bros and game developer 5th Cell have knowingly and intentionally infringed plaintiffs’ copyrights and trademarks by using Nyan Cat and [Keyboard Cat] Fatso’s image in Warner Bros’ top selling ‘Scribblenauts’ games, available on Nintendo DS and other platforms.

Things have become a little catty, with the meme owners pointing out that many companies have respected their intellectual property rights by regularly paying substantial licence fees to use the memes.

So why not get the copyright holder’s permission? As Warner Bros is learning the hard way, obtaining permission (and paying any licence fees) is essential. Once you have done this, you will be able to watch your meme spread throughout the internet, safe in the knowledge that you are abiding by intellectual property laws like a boss.

Legal Eye is a monthly Encore column from Von Muenster Solicitors and Attorneys who specialise in the media, marketing and entertainment industries.

Issue 23This story first appeared in the weekly edition of Encore available for iPad and Android tablets. Visit encore.com.au for a preview of the app or click below to download.


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