THE LAW AND YOUR MEME: THE INTELLECTUAL PROPERTY POTENTIAL OF MEMES
“One day I believe Meme creators would be able to register and hold intellectual property rights over their memes and will able to earn royalties from multiple uses.
Just the way artistes earn, every-time you play a song on Apple Music or similar streaming platforms”
This was the conversation I had on Twitter, that got my wheels turning and I began to ask what seemed like the most ridiculous question that my brain could churn. “Can memes be protected by copyright?” “Can meme creators begin to get royalties for their memes when used?”
In the wake of this inquisition, I realized that my mind began to avert to the various Intellectual property implications of what ordinarily, seemed like a frivolous aspect of the internet i.e. The use of a meme
In the bid to answer these questions, I then began to realize more problems to what was a seemingly direct and specific question. They manifested in more questions to be answered including:
- Who is the actual owner of the meme? The meme creator, the owner of the application used in the creation, the photographer of the picture used?
- When the content of the meme belongs to an already copyrighted work, is there an infringement or would there be a defense?
- Would license be granted and permission sought before using an infringing work?
Researching to find answers to these questions, I came to the reality that, there was little to no literature generally and most especially in Nigeria on these questions above, so I decided to do a deep dive.
WHAT ARE MEMES?
Originally, memes (pronounced “meem”) are means of satirically presenting controversial, political, and societal issues, peculiar to culture. It is often likened to a form of caricature used in humorously discussing vital public issues.
However, memes have morphed into instruments of communication, which have become popular with the evolution of the internet and social media. They are used in conveying apt ideas, emotions, and feelings.
For this article, we would classify memes into four types (stand-alone pictures, viral videos, gifs, and screen captures of films and TV series). Generally, from this classification identified, a typical meme would have any of the types of media above with a caption over it, to transmit the idea.
Thus, in the legal term, a meme is a derivative work, created off already copyrightable work, including pictures and films. However, I would focus more on stand-alone pictures and screen captures from movies.
HOW DO MEMES INFRINGE?
This question immediately comes to mind. However, if we would notice from the description of what memes are, we can identify that at the core of the memes created, is a work that already has Intellectual Property implications, either Pictures and Films. Thus, the meme creators would usually use a picture that already belongs to another person, or a still shot from a movie that has been copyrighted, or an image of a popular celebrity whose copyright belongs to another. An example is the viral pictures and video clips, of the renowned duo Nigerian actors, Aki and PawPaw, that have been frequently used on various social media platforms, which ordinarily are derived from their movies.
The Nigeria Copyright Act in Section 5, provides the exclusive right to a copyright owner, to reproduce, modify, distribute, perform, and display his/her work. Thus, by using works that are within the exclusive right of the copyright holder in creating memes, which eventually go viral on the internet, there is ordinarily, an infringement of copyright.
MEMES AND THE DEFENCE OF FAIR USE.
However, before we go ahead to resolve that there is infringement, there has to be determined how substantial the original work has been copied to create the meme. Leading us to the concept of Fair Use Doctrine. As we earlier stated when defining a meme, we identified it as a derivative work. Usually, the creation of such works are within the exclusive rights of the copyright holder, however, copyright law has established a framework that permits the use of a work that would ordinarily amount to an infringement to be permitted if the following criteria are met. These include:
- The purpose of the use,
- The amount of the work to be used,
- The effect of the use on the market for or value of the original work, and
- The nature of the copyrighted work.
Thus, from the above, we can conclude that the creation of memes is excusable under the Doctrine of Fair Use. As in most cases, it’s a work that makes use of already copyrighted work, mostly for personal use. However, is this the case in all situations?
INTELLECTUAL PROPERTY REALITY OF MEME CREATION AND FAIR USE.
In most cases, with memes, these fair use criteria are usually straight forward.
Thus, on the criteria of the amount used, with still-shot of movies, using a minute part of the movie, would fall under Fair Use Defense. Also, converting an original photograph to form a meme, would also be qualified for the Fair Use Defense. However, when we consider the criteria of, the purpose for which the meme is used, the defense doesn’t look as straightforward as initially conceived.
Seeing as most memes are used privately, there usually should be no need for invoking the rights of the original copyright holders. However, the internet and the digital space is fast evolving, and we see that memes are sources of advertisement and also revenue, this would then put a dent in the defense of fair use.
Thus, even if Fair Use could be a defense, it is still not adequate to excuse some memes created and are sources of revenue, giving copyright holders of those pictures a ground to pursue their intellectual property right if they so wish. This was the main issue in the “Socially Awkward Penguin Meme” case. Here, a blog post inserted an image of the already viral “Socially Awkward Penguin Meme”, but was eventually furnished with an infringement claim, which required them to pay a license fee of $900 to Getty Image who was representing National Geography, who claimed to have original copyright in the picture of the actual penguin that had been turned into a meme. Also the case of the popular “Grumpy Cat Meme”, who was able to secure $710,000 in damages for the use of the popular picture of the cat by Grenade Coffee company in the US, for infringement of its copyright used by the company in marketing.
Although, one has to go back to the important point that, the copyright holder has to have the will, to pursue cases on the copyright infringement of memes. Thus, the original photographer of the popular “Distracted Boyfriend Meme”, who was fully aware of the infringement of his original picture by meme creators, was found to have refused to bring any suit for the apparent infringement, even as he was well within his right.
Also, even where the individual copyright holders refuse to invoke their rights, we still see situations where stock picture agencies have been issue Cease and Desist Orders (similar to Injunction Order) to prevent the use of infringing pictures on their sites as with the “Socially Awkward Penguin meme”. The Digital Millennium Copyright Act (DMCA) has also played a significant role in preventing infringement on the internet, especially as there is little to no jurisprudence on the internet and social media copyright infringement.
Thus, flowing from the legal instruments and persuasive precedence, we can see a glimmer of hope for creators in Nigeria who decide to go ahead and assert their right to the infringing nature of memes, especially when utilized for economic benefit. Thus, as earlier mentioned, the creators of the Akin and PawPaw movies that are virally used for memes, have the opportunity, if found to be utilized for economic benefit, to assert their Intellectual Property rights.
In the light of our discussion with the various legal instruments available, it is safe to suggest that, the creators of the movies or the owners of the pictures from where most of these memes are carved, have the opportunity to seek legal redress for their use for memes and begin to accrue profit in royalty from the use of their creation as memes.
A FUTURE FOR MEME CREATORS
Although it seems as though, there is a bleak future for the copyright of meme and preservation of the creator's right, we have to recognize that there is present awareness on the viability of the memes for commercial value and also inherent Intellectual Property protection. Instances, where this has occurred, include the popular “Nyan Cat Meme” “Keyboard Cat Meme” where the original meme creators were able to secure a lawsuit against Warner Bros. for reproducing and distributing images of the cat in their video games. This brings to light the possibility of a protected future for meme creators. This then sets the precedence on a novel area of law that recognizes the commercial viability of memes and the disadvantage to the original meme creators.
Thus, irrespective of the present infringing nature of the memes, the creativity of the meme creator by adding a caption, changing the original color effect, that then transforms the original picture to be interpreted differently, can then be recognized as sufficient effort to afford separate copyright protection for the meme creators. Also, with the evolution of the law in tune with the vast digital ecosystem, it would not be long before the court would realize, the intricate creativity of meme creators and the commercial viability of memes, expand the jurisprudence in the space, and afford the protection of copyright.
Thus with the conversation, I had with my fellow Twitter user, although ridiculous to think, however, yes, there lies a future of protection for meme creators in the world of Intellectual Property and also the evolving Digital Jurisprudence.
