You have probably heard me talk about the dangers of sharing images we find on the internet without hunting down and acknowledging their source, or requesting permission from the person who made them, right? Copyright infringement is a real thing, and can be a very expensive mistake to make. Memes are a little bit different though.

What is a meme?

A meme is a piece of content that becomes popular and spreads widely across the internet. It may even go viral, which means that it spreads rapidly around the globe, generating a phenomenal amount of attention, in the form of likes, shares and comments.

However, the word “meme” is also used to refer to a combination of an image and text (often a quote) used in marketing on social media to illustrate a message rather than directly sell or promote something. The images I make and share are memes, although very unlikely to go viral.

Identifying the original source of a viral meme can be difficult – when something is all over the internet, how do you trace it back to its original poster? In many cases you can’t – particularly given the tendency to riff on memes where people produce their own variant. Sites like memegenerator.net make it easy for you to caption your own version of a viral meme. Take Grumpy Cat, for example. There have been 792,023 variant posts generated from this one picture using meme generator alone. Search Grumpy Cat on Google, and you will find more Grumpy Cat memes than you can poke a scowl at, going back to 2012. Should be safe to share one, right? Yes! And no…

Memes are game changers in the copyright world

Let’s face it. Memes are made to be shared widely for the fun of it! When someone produces a meme, they generally hope that others will find it hilarious, share it widely, other people will share it and it will go viral. Popularity of the meme is the name of the game, and that cannot happen if people feel worried or inhibited about sharing it.

In the US, the sharing of memes would generally come under the copyright concept of fair use. The factors to be considered when deciding if a use is “fair” include:

• the purpose for which the material was used, which distinguishes between personal, non-profit and commercial use
• the type of work
• the amount of the work used in relation to the whole work; and
• the effect of the infringing use on the potential value or marketability of the work.

Australia does not have an equivalent fair use provision. However, similar principles are likely to apply in relation to a claim for copyright infringement where the image shared is a meme, exists in multiple places all over the internet without attribution (ALWAYS do a google image search to be sure), and you are using it in the way a meme is meant to be used – that is, to illustrate a message or just because it is fun.

Does this mean anyone can take a meme that you have created for your business and do what they want with it? No. When you create your own meme, using words and images that you have a right to use, the resultant combination of graphics, text and layout is likely to qualify as a literary work under the Australian Copyright Act. Even if you are using another existing meme as your inspiration, your meme may be considered an original work if it shows sufficient “independent intellectual effort.” Don’t be a copycat – create something new – so others are prevented from copying you! This applies even if you are using an image that you don’t technically own – for example, using a meme generator to put your own words on a viral image.

As the owner of copyright in the new meme you have created, you have the exclusive right to communicate it to the public, such as by posting it online. If someone copies your meme exactly and posts it as their own (as opposed to sharing it with attribution), they are committing a copyright offence. If they photoshop out your logo or identifying information, it is another offence.

Playing it safe

Copyright is not the only consideration – you also need to keep trademark issues in mind. There is actually a company called Grumpy Cat Limited who owns the intellectual property rights to Grumpy Cat! Grumpy Cat is a valuable brand – once the meme went viral, Grumpy Cat’s owners registered the name and image as a trademark, created a website and Facebook page, and began selling merchandise. So… if you create a funny Grumpy Cat meme and share it in your social media, the owners are unlikely to object, because you are increasing the popularity of the brand and potentially helping them to sell more Grumpy Cat t-shirts.

What if you created a meme using Grumpy Cat to sell your own products? This is where the water starts to get muddy! There has already been at least one very expensive lawsuit – but that is over trademark issues, and we are talking copyright. From a copyright perspective, you are technically using an underlying image that you don’t own the rights to – so while you could enforce your copyright against someone who takes your meme and uses it to advertise their products, the remedies you could claim are likely to be limited… and there is always the potential that the owner of the original image will object to you using it to sell your products and bring a complaint against you.

The safest options when using any image – including a meme – for business use are:

CONNECT

• search for the creator and ask for their permission to share
• post an explanation with the image, expanding on its relevance to your work and making sure to link back to the original source, and
• never ever EVER remove someone else’s branding from a meme and share it as though it was your own creation.

CARE

• if you can’t contact the creator, or share from the source with attribution, the safest option is not to post
• consider yourself to be a content curator, responsible for the quality and provenance of the images you use, and
• if you really do want to use an anonymous meme that has no source or attribution information, use it only for fun or to illustrate a message -never use it to directly sell or promote your products or services.

CREATE

• the safest option is always to be original – if something inspires you, make a unique meme that conveys a similar message in your own way – put your own wonderful twist on the content
• if you create your own memes (or infographics, or any other kind of visual marketing material that you care about) always include your own branding and some way for people to easily find you, such as your web address
• ALWAYS use original content to sell and promote your own work, and
• if you are creating your own memes, think about the copyright in the elements you are using to create it – ensure your image is one you have created yourself, is free for commercial use or you have purchased an appropriate license to use it, and if you are using a quote from a larger literary work, acknowledge the author.

How I can help

At the end of the day, whether you choose to share memes or create your own, how you share them and the context in which you share them is up to you. Memes truly are a cultural phenomenon, but while they may blur some of the boundaries, they are still subject to copyright law. If you have more questions, either about sharing safely online in the context of your business, or protecting your own wonderful creations, I offer an IP Strategy Session that may help.