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First World Problems

i
: Copyright Liability of
Memes in Social Marketing

Nakia D. Hansen, JD


At first glance, the phrases First World Problems, Lolcats
ii
, and Success
Kid
iii
might not mean much but more than likely, you would recognize them if you
saw them online where they are shared on social networks, blogs, email, or
anywhere user-generated content is shared. They are popular internet memes
(hereafter just memes) a broad term representing an activity, concept,
catchphrase or piece of media that gains popularity and spreads rapidly via the
Internet.
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Memes can be photographs, animated GIF (Graphics Interchange
Format) files, videos, and image macros (an image with a descriptive line of text at
the top and a punch line on the bottom). Successful memes are hugely popular and
tend to go viral as they are posted and reposted across the web.
Increasingly, companies looking to capitalize off of the popularity of these
memes are incorporating them into social advertising campaigns.
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While social
networking sites make it easy to repost content with a single click, companies run
the risk of copyright infringement liability for their attempts to take advantage of
what appears to be free media. In this paper, I explain counts as copyrightable in
the world of memes and what unauthorized use looks like. What follows is a
discussion on how most corporate advertising is ineligible for fair use protections.
Finally, I review additional potential liabilities for social advertising and suggest
measures that companies can take to mitigate their risk.

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THE COPYRIGHTABILITY OF MEMES
In 1976, scientist and author Richard Dawkins coined the word "meme" in
book The Selfish Gene.
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Long before Facebook or Tumblr made memes ubiquitous
on the internet, Dawkins explained memes as:
[T]unes, ideas, catch-phrases, clothes fashions, ways of making pots or
of building arches. Just as genes propagate themselves in the gene
pool by leaping from body to body via sperms or eggs, so memes
propagate themselves in the meme pool by leaping from brain to
brain, via a process, which, in the broad sense, can be called
imitation.
vii


Dawkins envisioned memes moving from person to person via imitation. By todays
new meaning of meme, however, Dawkins vision works well for ideas and ways of
doing things but not so much for the actual expression of those ideas. The latter puts
individuals and companies at risk for copyright infringement.
The creator of an original work is afforded the exclusive rights under the
Copyright Act the moment she creates a work that is affixed in a tangible medium.
viii

The Act gives authors the exclusive right to control the reproduction, distribution,
display, public performance, and preparation of distributive works.
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There are two
types of memes to consider when determining whether copyright protection
attaches a work that is totally original and doesnt contain any other material
protected by copyright or a work that incorporates some facet of an existing work
(known as a derivative). For the former, copyright protection is fixed whether the
author/creator registered or not. Ownership of copyright in a derivative meme is
usually shared between the original author/owner of the media and the person that
created the actual meme incorporating that media.
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Ultimately, many famous memes the ones companies want to co-opt for
their social advertising campaigns are likely to have copyright protection. Once
companies acknowledge that fact, they must conquer the issue of finding out who
those owners are. Because of the viral nature of memes and the rapid pace at which
they are disseminated and repurposed, it can be rather difficult to track down the
true owner. For example, Bae Caught Me Slippin
x
was a popular photo/trend
meme in 2013 that involved photos that individuals took of themselves. Some of the
more popular versions of this meme spread from Twitter to Instagram and other
social networking sites and it wasnt always clear who the original photographer
was. A company looking to utilize this meme or others like it despite not knowing
who the actual owner is runs the risk of using it without permission. It is far easier
to find your photo on McDonalds Facebook page than it is for the fast food chain to
locate you.
There have been a few cases in which content owners have discovered the
use of their images/videos by corporations and sued them for copyright
infringement. One such case involves the creators of two wildly popular videos
Nyan Cat and Keyboard Cat who filed suit against Warner Brothers (WB) and a
gaming company named 5
th
Cell Entertainment in April 2013.
xi
While the videos
creators were aware that their works had gained meme status and were being
shared online, they had taken steps to protect their work for commercial use by
registering for trademarks and entering into licensing agreements and thus were
aggrieved to discover their work in a popular game.
xii
In the complaint against WB
and 5
th
Cell, the plaintiffs/creators assert that the companies knowingly and
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intentionally infringed plaintiffs copyrights and trademarks by using Nyan Cat and
[Keyboard Cat] Fatsos image in WBs top selling Scribblenauts games.
xiii
It has
been recently reported that the plaintiffs prevailed against WB and that the
companies will continue using the famous cats but for a fee from now on. "The
parties have amicably resolved their dispute, said a representative for the plaintiffs.
Warner Bros. Home Entertainment Inc. and 5th Cell Media, LLC are licensees for
the continuing uses of the characters in their Scribblenauts games."
xiv

While the WB case illustrates that when it comes to memes, companies
should proceed with caution, not every meme is eligible for copyright protection.
Recalling that memes are broadly defined, many things that trend virally as memes
such as quotes, slogans, catchphrases, tags, or other short phrases are not
protectable.
xv
U.S. copyright law also excludes ideas from protection.
xvi
So, for the
more conceptual or fad types of memes, take Planking
xvii
for example, theres less
risk in a company creating its own video or image around a person laying face-down
in odd locations than there is in repurposing a photo of someone else planking in a
particularly unique fashion.

MAKING FAIR USE OF MEMES

The exclusive rights of copyright owners are subject to limitation granted
that use of the protected content is a fair use. According to the Copyright Act, anyone
who makes a fair use of the work is not an infringer with respect to such use.
xviii

There are four determinative factors in a fair use analysis:
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1. the purpose and character of the use, including whether such use is
of a commercial nature or is for nonprot educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the
copyrighted work.
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Applying these factors, most corporate use of memes is ineligible for fair use
protection.

The first factor, while not conclusive, weighs against corporate use of memes.
Memes are most commonly shared from person to person simply because theyre
funny or outrageous. This use is noncommercial in nature. On the other hand, a
corporations use of memes in advertisements would almost certainly count as
commercial. Simply posting memes to a brands Facebook page, though technically
not an advertisement, is arguably still commercial in nature because the corporation
receives value through increased of page views, fan engagement, and good will
toward the brand.
The second factor is concerned with the nature of the copyrighted work the
more artistic something is (i.e. a clip from the latest episode of The Simpsons), the
closer it comes to the core of copyright whereas the more factual a work (i.e. a
photograph of Abraham Lincoln), the closer to the edges of copyright. It will be more
difficult to establish fair use in the former. The third factor isnt so easily applied to
memes because theyre relatively insubstantial by nature, consisting of a short video
clip, GIFs, or an image. Still, the factor must be weighed both quantitatively and
qualitatively on a case by case basis along with the others for a complete analysis.
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The fourth factor, arguably the most important, would look to whether the
corporate use of the meme hurt the market for the copyright owners work. If not,
then the inquiry turns to whether unrestricted and widespread conduct of the sort
engaged in by the corporation would result in a substantially adverse impact on the
potential market for the meme. Since they are typically shared for fun and for free,
there isnt much of a market for most memes. Owners of the most popular of memes,
however, have been able to convert their memes into licensing deals,
appearance/speaker fees, books, and more.
A cat named Tardar Sauce, better known as Grumpy Cat to millions around
the web, has an agent who ensures that the felines brand doesnt get over-exposed.
Grumpy Cat (and her owner) has deals in the works for a motion picture, a book,
and a line of beverages.
xx
For Grumpy Cat, whose owner is clearly engaged in
exploiting the market for her likeness, any unauthorized corporate usage would
most assuredly weigh against the company in a fair use analysis.

ADDITIONAL RISKS AND LIABILITIES

Even where a companys use of a meme isnt an infringing use, there are
other legal pitfalls to avoid such as defamation or violations of ones right to privacy
and publicity. When an individual is exposed to public ridicule or sustains some
reputational injury due to a writing, picture, or other communication embodied in
physical form, that person may bring a suit for libel, a type of defamation.
xxi
Due to
the deference given to the First Amendment, defamation cases have generally been
difficult to prove. Notwithstanding the proliferation of potentially libelous speech on
internet, most individuals find the costs to prove defamation to be burdensome.
xxii

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Companies would do well to remember that although memes often use images and
videos of people with humorous intent, some depictions might offend or result in
unwanted attention for the subject.
Though recently dubbed one of the top memes of the year,
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the popularity
of 60-Year-Old-Girl
xxiv
was an accident. Reddit.com user Beerdrummer uploaded
a photo of his wife to the site in order to show how, at six years of age, she looked
more like a 60-year-old woman.
xxv
Within an hour, hundreds of image macros
appeared using his wifes photo and a meme was born. At first the couple was so
overwhelmed by the attention that Beerdrummer shuttered his Reddit account but
reports now say both husband and wife find the meme to be hilarious.
xxvi
The
woman pictured probably wouldnt have had a strong case for defamation since the
photo being circulated was of her 6-year-old self and theres no evidence of
reputational injury. Where memes devolve from good-natured fun into hurtful
taunts, companies will need to avoid the risk of engaging otherwise popular memes.
Becoming a meme was anything but funny to the parents of Adam Holland
who recently sued Cox Media on his behalf for defamation and several other
claims.
xxvii
The Go Titans One meme featured a photo of Holland holding a sign that
was altered to contain slogans mocking his Downs Syndrome.
xxviii
The Hollands
allege that a radio show on WHPT-FM (owned by Cox) altered their sons photo to
promote its show Retarded News. The suit also named signgenerator.org, whose
"Retarded Handicap Generator" tool allowed users to add their own text to Adam
Holland's photo. While the Hollands may have an uphill battle ahead to prove their
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claims, most companies would agree that Adams funny photo is not worth the risk
of an $18M lawsuit.
Another cause of action that may attach to memes is invasion of privacy,
particularly violation of ones right of publicity, which prevents the unauthorized
commercial use of an individual's name, likeness, or other recognizable aspects of
one's persona.
xxix
In 2003, the star of one of the most recognizable memes
brought a lawsuit against his classmates. Ghyslian Raza, known to most as Star
Wars Kid was subjected to international mockery after video of him engaged in a
mock battle wielding a golf-ball as a lightsaber (complete with sound effects) was
posted to the file-sharing site Kazaa.
xxx
The video was subsequently altered to give
the appearance that Raza was holding a real lightsaber and more authentic sound
effects were added, causing the video to go viral in an unprecedented way Razas
video predates YouTube and todays ubiquitous culture of video sharing.
xxxi

As a result of the taunts and bullying Raza suffered after the video went viral,
the teenager left school and underwent psychiatric treatment for depression.
xxxii
His
family sued the families of the classmates who posted the original video. Ultimately,
the parties settled.
xxxiii
While the Star Wars Kid video was hugely popular and
garnered millions of views, companies seeking to capitalize off of that buzz should
keep in mind the emotional and reputational harm that could potentially result.

CONCLUSION & RECOMMENDATIONS
While it is unlikely that the owner of a copyright will come after you if you
use their meme, gambling with intellectual property law is risky, and can be very
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costly. People have a right to their original works as well as rights to their images
are used in certain cases. All marketing is internet marketing these days and though
companies dont want to embroil themselves in legal battles over the latest cat
video, they still want to take advantage of this low-cost, high-impact way to reach
consumers and build their brands.
One option is to post memes with non-commercial intent in order to improve
chances of getting a fair use exception. However, as explained above, the value a
company derives from posting a meme could be considered a type of commercial
benefit. Alternatively, companies can try to make their own memes using images
and videos they own or public domain content. This is the best way to avoid
violation of anyones intellectual property rights but memes are only memes
because they are popular and shared.
Few companies have had the success of Old Spice and its Old Spice Guy
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campaign, which originated with the brand and went viral thereafter. Most
corporate efforts to mimic the effect of memes fall flat, having the opposite desired
effect. Companies invest in marketing and social research because they want to
appear hip, current, and relevant to their audiences. As such, it will continue to be
an important function of corporate counsel to be on the lookout for potential
infringement and other legal risks when companies look to memes to give them that
desired marketing boost.



i
Don. First World Problems. KnowYourMeme.com. 2011 (http://bit.ly/1bTUhkX).
ii
Jamie Dubs. Lolcats. KnowYourMeme.com 2008 (http://bit.ly/1bgnIdC).
10

iii
Greg McCoral. Success Kid / I Hate Sandcastles. KnowYourMeme.com. 2009
(http://bit.ly/1bgnFyv).
iv
Cory Janssen. Internet Meme, Techopedia.com. (http://bit.ly/1fqrGEO).
v
David Waterhouse. How Advertisers Can Use The Power Of Internet Memes To
Amplify Their Brand, UnrulyMedia.com. Sept. 18, 2012 (http://bit.ly/190IS2C).
vi
Richard Dawkins. The Selfish Gene. New York City: Oxford University Press.
(1976).
vii
Id.
viii
17 USC 160
ix
Id.
x
RandomMan. Caught Me Sleeping / Bae Caught Me Slippin. KnowYourMeme.com.
April 2013. (http://bit.ly/IZTogX).
xi
Schmidt, et al. v. Warner Bros. Entertainment, Inc., CV13-02824 JFW (C.D. Cal.
CV13-02824)
xii
Emma Woollacott. Warner Brothers Sued For Infringing Cat Meme Copyright.
Forbes.com. May 3, 2013. (http://onforb.es/1cfscr0).
xiii
Schmidt, supra note 8.
xiv
Katie Van Syckle. Keyboard Cat and Nyan Cat Come Out Ahead in Lawsuit Against
Warner Bros. NYMag.com. Sept. 26, 2013 (http://nym.ag/1cfsHkO).
xv
17 USC 202.1
xvi
17 USC 102(b)
xvii
Brad Kim. Planking. KnowYourMeme.com. 2011 (http://bit.ly/1bTTHnc).
xviii
17 USC 107
xix
Id.
xx
Katherine Rosman. Grumpy Cat Has an Agent, and Now a Movie Deal. Wall Street
Journal. May 31, 2013 (http://on.wsj.com/18CgBRO).
xxi
Legal Information Institute. Defamation. Cornell University.
(http://bit.ly/1jpSpa4).
xxii
Electronic Frontier Foundation. Online Defamation Law. EFF.org.
(http://bit.ly/1jpSLNS).
xxiii
Brenna Ehrlich. Check Out The Top 10 Memes Of 2013. MTV.com. Dec. 19, 2013
(http://on.mtv.com/18ChJVG).
xxiv
Don. 60-Year-Old Girl. KnowYourMeme.com. Dec. 2013 (http://bit.ly/18CijCX).
xxv
Ryan Broderick. The Internet Turned A Guys Wife Into A Brand-New Meme After
He Uploaded A Photo Of Her As A Little Girl BuzzFeed.com. Dec. 10, 2013
(http://bzfd.it/18Ci6PW).
xxvi
Id.
xxvii
Pierce Greenberg. Photo of Nashville teen with Down Syndrome spawns Internet
meme, $18M lawsuit. Nashville City Paper. April 25, 2013 (http://bit.ly/1jpVSp3)
xxviii
RobotHeart. Go Titans One. KnowYourMeme.com. May, 2013
(http://bit.ly/1jpUYsW).
xxix
Legal Information Institute. Publicity. Cornell University.
(http://bit.ly/1jpYWlh).
xxx
JamieDubs. Star Wars Kid. KnowYourMeme.com. 2008 (http://bit.ly/1jq2TXd).
xxxi
Id.
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xxxii
Alex Pasternack. After Lawsuits and Therapy, Star Wars Kid is Back. Vice
Magazine. 2010 (http://bit.ly/1bgm8Iw).
xxxiii
Id.
xxxiv
ImproperUsername. Isaiah Mustafa: Old Spice. KnowYourMeme.com. 2000
(http://bit.ly/1bgnvqB).