We all love a good meme. We share them with friends, use them to entertain ourselves at work, and create them ourselves. Even businesses are beginning to use them as a social media tool to promote their products or services. But using memes for commercial purposes has become a copyright conundrumWe consider the consequences for businesses using a meme without permission.

Who Owns a Meme?

Like any creative work, the creator of the meme owns the intellectual property in the image. Under the Copyright Act 1968, copyright automatically exists in any original work and does not need to be registered. Copyright includes a set of exclusive rights to use, publish, licence or adapt the work. This means that using a meme without permission can infringe on the copyright of the creator. In reality, meme creators are unlikely to sue the average person who shares, reposts or tweets their meme. The same cannot be said, however, for businesses as they may be using them for commercial purposes (i.e. to promote or sell a product or service).

Third Party Rights

Usually, a meme incorporates a third party’s intellectual property. For example, many memes feature Futurama Fry, which Fox Broadcasting Company owns. This means that in addition to obtaining permission from the meme creator, it is also essential to seek permission from the owner of other material in the meme.

Lesson #1: Warner Bros Infringement

In 2013, the creators of Keyboard Cat and Nyan Cat memes sued Warner Bros for using the two memes in their Nintendo game, Scribblenauts. Both of these memes were one of the first to go viral, and Nyan Cat even won ‘Meme of the Year’ award in 2012 (yes, that’s a thing!) 

Warner Bros, unsurprisingly, wanted to jump on the meme bandwagon and used the two images to promote and market their games. As a result,  the creators sued Warner Bros for copyright and trade mark infringement.

Lesson #2: Grumpy Cat

We’ve all seen the Grumpy Cat meme (this was actually someone’s cat named Tardar Sauce). Grumpy Cat has appeared in countless memes with apparently no consequences. But in the last couple of years, Grumpy Cat Ltd has been taking action against those piggybacking off their intellectual property.  

Coffee maker, Grenade Beverage was sued for intellectual property infringement for using Grumpy Cat to promote their ‘Grumpuccino’ iced coffee.

Lesson #3: Socially Awkward Penguin

The Socially Awkward Penguin is another popular image that is used in many memes, illustrating uncomfortable situations. The original photograph was taken for National Geographic and was available for licensing through Getty Images. In 2015, Getty Images sued a German blog, Get Digital, for posting the Socially Awkward Penguin on their website without obtaining permission. The blog was forced to pay nearly $900 and take the image down. 

Fair Dealing Defence

Meme posters faced with a copyright lawsuit will try to rely on the fair dealing exception. In Australia, ‘fair dealing’ is an exception to copyright infringement claims. Fair dealing refers to the use of copyright work for the following reasons:

  • research or study;
  • criticism or review;
  • parody or satire;
  • reporting news; and
  • giving professional advice.

The most common fair dealing exception that relates to memes is the parody or satire exception. A creator must show that the use of the work must be for parody or satire and it must be fair.  

Whether the use is fair will depend on: 

  • how much of the work has been used; 
  • the effect of the use; and 
  • whether it has been used for commercial purposes. 

The parody or satire defence has not yet been tested in Australia courts. But if the use was for commercial purposes, cases have shown that it may not come under the fair dealing exception.

Key Takeaways

Untangling the web of meme ownership to obtain permission can be difficult, and many individuals share, tag or even create memes with no consequences. But if you’re running a business and using memes for commercial purposes, you need to consider the repercussions. If you think you may be using someone else’s material or someone is unlawfully using your material, get in touch with LegalVision’s intellectual property lawyers on 1300 544 755. 

Alexandra Shaw
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