INTRODUCTION
The digital economy has given rise to the enormous growth of social media in almost every sphere of our lives driven by online humor and sarcasm – particularly in the use of memes. The rise in the use of memes is lauded as a worldwide sensation and global phenomenon which has swept every corner of our digital space and content creation over the past decade.
The driving force behind the popularity of “internet meme culture” is the simultaneous explosion of the content creation industry – an industry fueled by the desire to promote, influence, share and inspire. Today, there are more than 50 million content creators according to a report by SignalFire in 2020 including social media influencers, bloggers, and videographers who are utilizing software and other creative tools to create digital content, grow and monetize their craft. In exchange, “meme culture” has also had a significant influence on this craze of digital content creation as it helps drive attention and content popularity.
To many, memes are just a bit of light-hearted, harmless fun content either expressed as pictures, videos, words, or phrases. However, underlying the creation of memes are intellectual property rights which original creators can assert preventing their use without consent or authorization. And quite often, digital content creators do not recognize these intellectual property rights when they use memes created by others in their quest to develop their own content.
Therefore, the purpose of this article is to help draw the lines between the intellectual property rights of creators of memes vis-à-vis digital content creators, especially in circumstances where memes are used in the creation of such content.
THE MEME CULTURE
It is difficult to attempt to define “memes” accurately. Rather, we have found them as ideas, behaviors, and styles to express our joyous moments, sad times, and more saying less. Succinctly, there are reflected in pictures, videos, words, and phrases which represent the summary of our thoughts in every given circumstance. And instead of being expressive, we use memes to communicate precisely or mischievously what we may not want to say or be associated with.
Almost like a virus, memes have taken over our world and have become notable symbols for transmitting our ideas, practices, and expressions. The repetitive use of some memes has made them go “viral” and have become globally recognized icons or images or expressions for our distinct emotional moments. Memes have found significant expression in the use of content creation on microblogging and social media sites such as Twitter, Facebook, TikTok, Tumblr and others – and kid you not, they account for the growing popularity of these sites invariably.
The high acceptance and adoption rate for memes have made them ideal content creation tools and many digital content creators rely on popular memes to drive home their content messages, create viral posts, and share. The increasing use and distribution of memes put into focus the consideration of the intellectual property rights of the original creators or characters use as memes in content creation today.
Memes are without doubt the creation of people and rightly, such persons may to some extent depending on the originality have acquired or gained some intellectual property rights in their respective memes. Once a creator gains an intellectual property right in a meme, its distribution and use must be subjected to lawful considerations, permissions, and consent. And use to the contrary will be an infringement of the intellectual property right of the creator or the characters used in the creation of memes.
INTELLECTUAL PROPERTY PROTECTIONS
Copyright is the appropriate intellectual property protection tool for memes and content creation. A copyright gives creators or owners of literary works, artistic work, musical work, sound recordings, audiovisuals, choreographic work, derivative work and computer software or programs the exclusive right to copy, distribute, adapt, display and/or perform an original work of authorship as soon as the creator fixes the work in a tangible form of expression.
The twin purpose of this provision of law is to prevent others from copying and using in any form a work of a creator or an author who had toiled using his or her intellectual labor to create same. Also, it offers recognition and grants the right to exclusive economic exploitation of the work of an author.
Nonetheless, in striking a fair balance between protecting the economic rights of owners of copyrights and the need to encourage the free exchange and dissemination of ideas where necessary for the development of our societies, copyright protections permit the secondary use of an original work of an author however subject to the appropriate permissions and consents from the holder of the copyright in the work.
Interestingly, the law does not prescribe registration of copyright as a precondition for asserting such rights in the original works of an author. This means that the proof of ownership or creation of an original work in accordance with the law will not be proof of formal registration although registration is desirable.
DIGITAL CONTENT CREATION, MEMES, AND THE INTELLECTUAL PROPERTY LINES
We are witnessing a growing list of digital content created for varied purposes. Largely, dependent on the social media platform, the format of the content may be created to suit the target audience and the structure of the platform. Some are created purely for fun, whilst others are underlined by commercial considerations. In the process, some have assumed full-time roles as digital content creators creating on daily basis viral content for their several followers on various social media platforms.
The temptation which has been made real is the use of memes created by others in the creation of digital content by these full or part-time “social media digital content creators”. Either as short videos, words, or phrases, etc. one is subject to the frequent use of memes created by others in the content creation process. In most instances, the creators of these memes are never acknowledged and their permissions or consent, I suspect are never sought. However, their viral memes have become integrated as a proprietary part of content created by others who are monetizing same at a great disadvantage to the original creators of the memes.
There is abundant evidence of this abuse of copyright on the internet today. Examples include pictures, voice recordings, catchy phrases, and words which are used consistently by others on social media without permission, consent, and acknowledgment.
The use of memes created by others is not entirely discouraged by copyright laws. It is recognized within the derivative work category allowing others to create their work based on an already existing copyrighted creation. So, what digital content creators need to do is to seek the appropriate permission or consent prior to the use of memes or duly acknowledge the creators in their derivate contents – as they thereafter acquire intellectual property rights in same.
A good example of this scenario is the viral meme of Success Kid, an image depicting a toddler smugly clenching his fist on a beach. It has been shared millions of times, and with endless comical variations and captions by people expressing unexpected triumph in a humorous fashion. However, this meme was at the epicenter of a US legal battle between the owner of the copyright in the work and US far-right politician Steve King who used the Success Kid meme in a fundraising event for his re-election bid. After ignoring a cease-and-desist letter, he ended up in court, facing thousands of dollars in damages and an exorbitant amount of legal fees.
Therefore, it is imperative to note that, the law recognizes copyrights and always seeks to protect authors or creators of works deemed to have attained copyright from exploitation by others. Where infringements occur, the law offers among others, remedies including an injunction against continuous use, account for profit, and payment of compensation among others.
THE PURSUIT OF THE PERMITTED USE OF MEMES
The fact that a meme may become copyright material does not prevent its use by others. Admittedly, memes have become the most appropriate form of expression in our digital world today. They represent our emotions, feelings, and gut mostly appropriately than long sentences and statements. So, content creators will continue to find ways of using them in their content creation to convey their messages. As individuals too, we will continue to use memes when needed to make fun, sympathize, tease, or mock our friends, relatives, and foes.
At worse, meme culture is here to stay and will be entrenched in use going forward. Hence, all secondary uses of memes originally created by others must pursue their uses in a permitted manner so as not to deny their creators the protection offered by copyright in such creations.
There are clearly recognizable intellectual property rights in memes and content created using same. The lines are never blurred. And we must begin to recognize and respect the boundaries of intellectual property assets and/or rights through permitted uses which may include seeking prior permission, consent, and/or acknowledgment.
Alternatively, content creators may go into some profit-sharing arrangements with meme creators to secure their economic benefits and promote new creations in line with their content creation strategies.
The digital space has opened a wide door of economic prosperity for content creation, and many are monetizing the benefits in apparent violation of the copyright of others.
The intellectual property line between memes and content creation is clear, please do not cross it in the name of content creation without seeking permitted use.
CONCLUSION
Memes have little economic value in themselves. Nonetheless, their use in other content creation may result in the infringement of copyrights in them. Therefore, if your interest is to create content which involves the use of memes, recognize the fact that someone has a copyright in same just as the content created by you, and do not abuse such rights without the pursuit of the permitted use of memes.
ABOUT THE AUTHOR
HAROLD KWABENA FEARON is a Trainee Associate with SUSTINERI ATTORNEYS PRUC with its Corporate, Governance and Transactions Practice Group, specializing in legal service provision for Startups/SMEs, Fintechs and Innovations. He welcomes views on this article via harold@sustineriattorneys.com