Memes are, without a doubt, the greatest thing about the internet.
There is an entire sub-culture of the English speaking world that exists around memes. This is a subculture that advertisers want to tap into and exploit to maximum effect. Examples include Sprint’s use of Nyan Cat to advertise their Nexus S 4G, Nissan’s use of planking in a commercial for one of their dealerships in Wichita, and the Keyboard Cat in a commercial for Wonderful Pistachios.
What Could Possibly Go Wrong?
Some big names have found themselves in a bit of legal trouble when they try to harness this internet culture for commercial gain, such as Warner Brothers, who have been sued by the creator of Nyan Cat for copyright infringement. Radio station, WHPT-FM, in Tampa, Florida, also found themselves in trouble for posting a meme using a photo of a teenager with downs syndrome, and internet sensation Sweet Brown has sued Apple for profiting from her YouTube success without permission.
Before advertisers take advantage of this brave new world, and reign triumphant like Success Kid, they need to know who owns a meme and how to get permission to use it. While we might hope that all meme owners are Good Guy Gregs, there could be a lot of trouble if the meme you use belongs to a Scumbag Steve.
Who Owns a Meme?
For those Internet Grandma Surprises out there, a meme generally involves a picture with text over the top. There are some memes that are more conceptual, such as planking or Nyan Cat, but these are less likely to be caught by copyright law.
Ownership of the copyright in a meme is usually shared between the owner of the picture, and then the person that created the meme using that picture. In that sense, it is pretty easy to work out ownership of the meme.
The problem is finding out who those individuals are in the interwebs, when only the NSA knows who has posted what and when.
Finding the Owner of a Meme
For a lot of the most popular memes, the owners have made themselves known publically and can be tracked down relatively easily. For example, the Overly Attached Girlfriend is a meme created by Laina Walker, the copyright owner of the Success Kid image is the child’s mother, Laney Griner, and the owner of the image in Futurama Fry is the Fox Broadcasting Company, Inc.
Knowing who owns the meme is always a good start, as you’d probably rather be dealing with a young mother from Jacksonville, Florida, than Rupert Murdoch’s Fox Broadcasting Company, when it comes to negotiating the use and licence fees for your meme in advertising.
Sometimes the owner of a meme can’t be tracked down so easily, so companies are taking a substantial risk by using the meme without permission. In these cases, it’s certainly worth doing a bit of digging to avoid a lot of pain later on.
Using the Meme
Once you’ve sorted out copyright ownership and sought the permission of the copyright owner to use their meme, you should be free from any intellectual property issues. However, this doesn’t mean you won’t face other legal problems.
Even if the owner of the copyright has given you permission to use a meme, memes often use photos of people in a way that might offend or upset that person. Just think of how the Ermahgerd girl feels, or look at the reports about Beyoncé’s agent going into over-drive to try and stop the Unflattering Beyoncé meme (fortunately, one woman couldn’t stop the whole intertubez). Likewise, a lot of memes are just downright offensive to most people, include full-frontal nudity or other material that the general public might find offensive.
With the risks of defamation, breach of advertising standards and copyright infringement, it is always a good idea to have your meme checked before you try to use it in any major commercial advertising campaigns.