Intellectual Property Law Update – Can you use memes to promote your business?
Memes have taken the internet by storm. They present snapshots of humorous and relatable content with the ability to “go viral”, reaching millions of people in an instant. Therefore, it comes as no surprise that memes are an extremely effective form of advertising. They’re easy to appropriate, instantly recognisable and can spread like wildfire. However, businesses may not be aware of the intellectual property law issues that affect the use of these popular images.
What is a meme?
A meme is a photograph or sketched image overlaid with text. The images are often comical in nature and relevant to a large audience. They are shared through multiple online platforms and can reach a global audience in a very short time-frame. For example, the “Grumpy Cat” meme was started by Tabatha Bundesen’s brother who posted a video of her hilariously grouchy looking cat to the social media platform “Reddit”. Within 48 hours the picture went viral. Five years on and Grumpy Cat now has a net worth which has been estimated at approximately USD$100 million.
The intellectual property law minefield
Under the Copyright Act 1968 (Cth), when someone creates content in Australia they automatically obtain intellectual property rights to the work. This means the creator has exclusive rights over the use, licence and adaptions of the work. Furthermore, if the image has been incorporated with another person’s work, it is likely that a third party also has rights to the image. For example, Fox Broadcasting Company owns the intellectual property rights over memes that incorporate Futurama character “Fry”.
Cases to learn from
You might be thinking that memes are used and shared online without consent every day. While this is undoubtedly true, chancing with someone else’s intellectual property is still risky business. Increasingly, meme creators are cracking down on illicit use of memes. For example, the creators of the famous “Keyboard Cat” video and “Nyan Cat” meme paired up and sued Warner Bros and 5th Cell Media for using their creations without consent in a game called “Scribblenaughts”.
Another extremely popular meme is the “Socially Awkward Penguin”. The image was originally a photograph taken by the National Geographic and was licensable through Getty images. In 2015, Getty images brought action against a German blog “Get Digital” for using the meme without permission. Get Digital was forced to take the image down and pay compensation.
Lastly, Grumpy Cat Ltd has been bringing action against multiple parties for illegal use of the grumpy cat image. Recently, the company sued Grenade Beverage for its line of grumpy cat merchandise which allegedly went beyond the original agreement Grumpy Cat has with the franchise. The trademark holders requested USD$600,000 in compensation for the product.
What happens if you breach intellectual property law?
In Australia, someone who has breached intellectual property law might want to rely on the exception of fair dealing. However, the Australian Law Reform Commission has given the opinion that if the use of content without permission is commercial in nature then it is less likely to be found to be fair use. While this doesn’t mean that all commercial use isn’t fair dealing, it could suggest there is a higher bar for businesses when it comes to intellectual property rights.
How to protect yourself
While there is a chance that you might get away with using memes without permission, there is a risk that it could wind up costing you a lot of money and damage the reputation of your business. If you really enjoy memes and want to use them as part of your marketing strategy, your best bet is to either seek permission from the creators or make your own memes from scratch. While homemade memes might not have that instant recognition factor, as of yet, nobody has been able to predict what is going to go viral next.