One of the most effective marketing techniques over the last two years has been the use of memes. Even if you don’t know what a meme is, you’ve come across memes on your Twitter or Instagram feed. I would define a meme as an idea that is transmitted using a picture/text.
Here is an example that is relevant to most ecommerce sellers who have ever had their account suspended.
First of all, memes are now big business. Big brands now hire professional meme makers to create viral content. Some meme makers are pulling in $10 million per year and companies such as Budweiser are using memes to market their beers…often without you even knowing that you are looking at an advertisement.
“They certainly can drive a lot of shareability,” says Conor Mason, the AB InBev marketing director who hired Doing Things last fall after friends kept sending him the company’s Instagram posts. The meme ads “are just like our editorial memes,” says Hailey. “It’s funny content that you want to share with your friends.” And if you and your friends don’t quite know it’s an ad, all the better.
Memes have also become a secret weapon for some ecommerce sellers building brands online. Sellers use memes to build brand awareness and connect with their target audience. Since memes are often inside jokes it can be helpful to connect with customers. Memes also service to humanize a brand. Humor is perhaps the last frontier that computers and AI cannot replicate. Memes show that an actual human being is behind a brand on the Internet.
Here is an example how Bark Box, an online subscription store used memes to sell pet food.
These memes travel around the Internet all day long. And 99.9% of the time no one is compensated for the image. The person who owns the photo is not compensated. The person who created the meme is not compensated. Yet in the end, someone who owns an ecommerce brand gets traffic to their site or product. At first glance, this does not appear to jive with copyright law.
Under copyright law, there is something called “Fair Use.” This is the defense that memes are protected by. Fair use under §107 of the Copyright Act lists four factors to be considered:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- 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.
An image used for the purpose of commentary, criticism, reporting, or teaching is considered fair use. This is why you often have news broadcasts that try to slip in copyrighted content such as Game of Thrones on Youtube. You sometimes need to sample a copyrighted work in order to discuss it. A book review often samples excerpts of copyrighted books and this is protected as fair use.
Most people would consider memes are a type of parody or satire. Parody is considered fair use. Most importantly, one can use parody for commercial purposes and still be protected. However, you have to do a deeper dive to determine if your particular meme will be considered fair use.
The courts will consider the following:
- Whether the person creating or sharing the meme make revenue (even indirect revenue) from sharing the meme
- The extent to which the copyright holder’s work has been used or copied
- Whether the nature of certain TV and media characters makes them famous and susceptible to other uses
- The potential of the meme to harm the brand of the copyright holder
The Courts would apply a more strict test if the meme was used to make money. There is more leeway for artistic works rather than something that is strictly commercial. However, the more important question is whether the meme was transformative. You have to create something that a reasonable person would consider an entirely new piece of work. The meme “must alter the original with new expression, meaning, or message” to be considered fair use. Since memes often change the entire meaning of an image, I think that most memes would be considered transformative. A meme is not simply applying a filter to a protected image; it is an entirely new piece of work.
The Courts will also try to determine if the original copyrighted work was harmed by the meme. Harm is usually defined as financial damages. Was the marketplace for the original work diminished because of the meme? For example, are fewer people going to watch the Simpsons because of a meme that they saw of Homer? It is doubtful that one can prove actual damages. It is possible that a serious character from a movie or story might be harmed. I think one could make an argument that making a meme of a serious Lord of the Rings character diminishes the value of the original.
The Courts also examine whether the meme or new transformative work could act as a substitute for the original. For example a song cover could be a substitute and thus is not considered a transformative work.
For memes to be protected by Copyright they have to be “fixed” and “original.” Since memes are static images that exist on a server and can easily be replicated, there is little debate that memes are fixed. The threshold for originality requires a minimum degree of creativity. Most memes would easily pass this low threshold. There is actually a lot of creativity in the text and placement of that text on the appropriate images. On the surface, most memes would be protected by copyright law. If that’s the case, why are meme creators almost never compensated? Do they have a claim?
Does the meme creator have any copyright protection? A lot of people scour the Internet looking for viral memes. They then upload these memes to sites like Redbubble where someone might have a t-shirt printed of the theme. The person who uploaded the meme makes money and Redbubble as a platform makes money. However, the meme creator makes no money. Furthermore, there are lot of Instagrammers who steal memes and offer no attribution. However, the social media platforms often have a sharing clause in their terms and conditions. The platforms claim that there is a de facto license for any content that is put on their platform. For example, if you were to actually read the Reditt user agreement, you would find the following clause:
“User Agreement” that by creating with or submitting content to its service, the user grants Reddit “a worldwide, royalty free, perpetual, irrevocable, non-exclusive, transferable, and sublicensable license to use, copy, modify, adapt, prepare derivative works from, distribute, perform, and display [the content] … in all media formats and channels now known or later developed.”
In other words you are granting a royalty free license to have your work modified and shared on the platform.
In summary, a meme creator will generally not be liable for using a copyrighted work. As long as the changes to the original copyrighted work are transformative, the meme shall be considered a new and original piece of work. Memes meet the standard of copyright protection. They are fixed and sufficiently creative to be under the protection of copyright law. However, it is still not easy to enforce this new and ever changing form of intellectual property.