May 27, 2021
Thanks to social media, it is becoming extremely difficult to get through a day without coming across a meme, and there seems to be an appropriate meme for every occasion. Given the humorous, witty and viral nature of memes, everyone seems to want in on the action, even big corporations. I do enjoy a good old meme, and I have shared a few in the past. However, as someone who works in intellectual property, when I come across a great meme I can’t help but question who owns the underlying IP rights in a meme and whether there are any risks in sharing someone else’s creative work without the owner’s permission.
What is a meme?
According to the Oxford dictionary, a meme is:
In case you are still struggling to understand what a meme is, google socially awkward penguin. This meme is arguably one of the most recognised memes.
Are meme’s protected by copyright, and what are the implications?
Copyright subsists automatically in all creative works (such as photographs, books, or anything expressed in writing, audio, sound recordings, video recordings, etc.). As such, the underlying image, video and the meme itself will fall into the category of creative works that are protected by copyright.
Copyright protection gives the owner of the creative work the right to control the exploitation of the work in which the right subsists. There are several specific rights that only the owner of the copyright can exercise. However, the most relevant rights to this topic are the right to copy, adapt, and distribute.
As memes will be created when an image or video is adapted in most cases with written text, this adaptation is likely to constitute copyright infringement, as it is making a derivative work and copying.
Are there any exceptions?
In October 2014, the UK implemented the EU Copyright Directive and amended the Copyright, Designs and Patents Act 1988 to add a new section 30A (Caricature, parody or pastiche). As such, the use of a meme would likely be covered by fair dealing exceptions; for example, caricature, parody or pastiche does not infringe copyright in the work.
Importantly to note, ‘fair use’ is a legal term used to establish whether a use of copyright material is lawful or whether it infringes copyright. Unfortunately, the law as it stands does not define fair use. Whether or not the fair use exception would apply is dependent on the facts, degree and impression in each case.
Notwithstanding the above exception, you may be at risk of an infringement claim if you share a meme without the owner’s permission or if you are using existing copyright-protected material to create new memes. This is because the image will be protected by copyright. Adapting or copying the images can only be done with the copyright owner’s express permission.
Where the use of memes is directly or indirectly related to a commercial endeavour, the fair use exception is unlikely to apply. If you want to minimise such risks, it is advisable to make sure that you have the appropriate licences in place for commercial use.
The takeaway here is that whilst the ‘fair use’ exception can protect a user from an infringement claim (if they choose to adapt or copy copyright protected images). There is a thin line between fair use and what would constitute infringement, and the outcome is heavily reliant on the facts of each case. If you would like advice on potential risks, or if you are a copyright owner and you would like advice on your options regarding possible infringement, please do not hesitate to get in touch with us at firstname.lastname@example.org or call us on 0207 288 6003 (and one of our specialist IP lawyers will be happy to assist.
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