When I text you and half of my phone contacts a meme, I’m not thinking about where it came from. I don’t know who took the original photo or who conceived the humor that makes me literally laugh out loud at an inopportune time, like a business meeting. Instead, I can’t stop laughing at what Sweet Brown and Kim Jong-un are saying or doing (Note: they are featured in separate memes, but maybe they should appear together in one).
Memes are everywhere. While undeniably intellectual property, works resulting from thoughts and creativity, are they are protected by intellectual property rules and laws? By looking at a few memes and meme topics, I will try to answer this question.
Socially Awkward Penguin
Socially Awkward Penguin is a penguin who is not sure what to say or do, or how to react. (All mentioned memes are below this blog in case you are unfamiliar). He or she was all over the internet a few years ago the star of not just memes but shot glasses, ties, onsies, and advertisements. In a September 8, 2015 Washington Post article, author Caitlin Dewey. https://www.washingtonpost.com/news/the-intersect/wp/2015/09/08/how-copyright-is-killing-your-favorite-memes/ explains that she and others were shocked to learn that not only was Socially Awkward Penguin intellectual property of National Geographic, its use by others was being regulated by their licensing agency, Getty Images.
The public, myself included, had no idea that Getty Images decided to pursue and settle multiple infringement cases for use of the penguin. All of the settlements included non-disclosure agreements. All was under the radar until a German Blog called getDigital, decided to publish Getty Images’s letters to them online.
Marketing Manager Bastian Krug explained, “The Awkward Penguin is not just a random image we stole from Getty’s database, but one of the most well-known Internet memes….We have no idea why they chose us. https://www.washingtonpost.com/news/the-intersect/wp/2015/09/08/how-copyright-is-killing-your-favorite-memes/
As a result, Krug and team made an illustrated (not using the photograph itself) version of the penguin for the site and encouraged people to share it.
Ryan Gosling Hey Girl
Ryan Gosling doesn’t feel as if he owns his memes. Nor does he have a problem with them. I’m not sure if this is because he is a celebrity and it comes with the territory or because the memes are 9 times out of 10 compliments to his attractive looks and boyish charm.
The 35 year-old actor is the father of two children, with actress wife Eva Mendes (I guess you can try to have his third baby). In a Hollywood Reporter interview he said that he never said “Hey Girl.” He explained, “I think it really is sort of like, I’m a pigeon and the Internet is Fabio and it just happened… [there’s] one of me looking at some ducks, and I’m in some kind of ‘Star Trek’ jacket…I don’t know why I have that. And it says, ‘Hey Girl, I’m just sitting on the dock of the bay, wishing I could waste the rest of the day with you instead of these ducks.’” http://www.huffingtonpost.com/2013/03/21/ryan-gosling-hey-girl-meme_n_2923993.html
In a funny scene made for Buzz Feed, Russell Crowe shows Gosling all the items that the meme inspired from mugs to books to sun visors. http://www.ew.com/article/2016/04/24/nice-guys-ryan-gosling-russell-crowe-hey-girl. And then there’s this scene on the Ellen show where Ellen shows Gosling a body size pillow of him on it: http://mix989.iheart.com/onair/brian-price-57019/ellen-embarrasses-ryan-gosling-with-hey-14742833/
Grumpy Cat is a girl, born with the name Tardar Sauce. As a true celebrity, she not only has a manager, she limits her media appearances to two-hours a day. Similar to Socially Awkward Penguin, it all started with a photo. When her owner Tabatha Bundese’s brother Bryan posted a picture of her on Reddit in 2012, people loved it. One photo encouraged more photos, photos became memes, memes went viral, and Grumpy Cat became a purrfect household name, appearing on Good Morning America, CNN, and American Idol. https://en.wikipedia.org/wiki/Grumpy_Cat
Grumpy Cat’s owners were smart. At some point in the height of popularity, they filed for numerous trademarks and copyrights. Based on research it seems they understand that people who make memes of their cat are not only acceptable, they are in essence the people who made them financially successful. They also probably got a lesson that the fair use doctrine would apply so trying to police everyone creating and sharing a meme would be a lost cause.
That said, all commercial use must be agreed to, granted, and formally licensed. Because Grumpy Cat’s owners have copyrighted and trademarked both pictures and images of the cat, they have a right to send Cease and Desist Letters and file lawsuits (as necessary) and they do. They also license out the use of Grumpy Cat as mentioned. However, the use must be within the scope of the agreed upon licensed use and no more.
Grenade Beverage, a California based coffee company had a business relationship with the Grumpy Cat Team. The copyright and trademarks of Grumpy Cat were licensed to Grenade so that they could make Grumpy Cat “Grumppuccio” iced coffee. However, they were not to sell merchandise such as coffee beans.
“The roasted beans are up for sale at grumpycat.com and are being widely advertised to tens of thousands of followers on various social media accounts. The cat’s owners are asking the court to stop these sales and hold Grenada responsible for various copyright and trademark infringements.
The potential statutory damages run into the hundreds of thousands and in addition Grumpy Cat’s owners also want to take over the grumpycat.com domain name, claiming that it was registered in bad faith. Previous requests to sign over the domain name all failed.”
Grumpy Cat’s official site is:
https://www.grumpycats.com/contact. He hates you and he hates emails.
Meme Creator Sites
Sites like “Meme Generator” help you make your own meme. Sites like these allow people to churn out as many memes as necessary to annoy your friends and family with. Why not make The Most Interesting Meme in The World out of Dos Equis’ “The Most Interesting Man in the World?” https://memegenerator.net/Dos-Equis-Man . By posting an Intellectual Property Notice on their site, Meme Generator mentions the Fair Use Doctrine, a well-known and frequently used defense to alleged copyright and trademark infringements.
The Fair Use Doctrine
“A legal doctrine that portions of copyrighted materials may be used without permission of the copyright owner provided the use is fair and reasonable, does not substantially impair the value of the materials, and does not curtail the profits reasonably expected by the owner. http://www.merriam-webster.com/dictionary/fair%20use
(Notice and Takedown Procedure Section 13.1. memegenerator responds to notices of alleged infringement that comply with Intellectual Property, Copyright, Privacy and Libel laws. As part of our response, we may remove or disable access to content and/or material residing on the web site that is claimed to be infringing and/or defamatory, libelous, or is an invasion of privacy or publicity rights. https://memegenerator.net/terms-of-use
Intellectual Property Notice Section 12.7. Without derogating from the aforementioned, you hereby acknowledge and agree that even if a User has uploaded infringing content to the website, memegenerator is protected from any claim under the Fair Use doctrine, as the content on the site is for humoristic and satiric use. https://memegenerator.net/terms-of-use
So are memes protected by copyright laws?
Don’t be mad or grumpy but the answer is: it depends. Copyrighting your art or photo collections is a good idea. You wouldn’t want someone else to become a millionaire from pictures of your dog snowboarding. Even if your work doesn’t go viral, it can be infringed upon by one or several parties. At Mohr IP Law our attorneys can help you file a copyright, trademark, or patent. We love our clients and we “meme” it.