John Travolta is confused. He is confused in the doll aisle of a toy store, confused about an answer on the TV show Jeopardy!, and even confused and alone inside the late-night diner in Edward Hopper’s famous painting, “Nighthawks.” But these are not promotional trailers for a new HBO Max series or Netflix original movie. Looking around various locations in his black suit and bolo tie, John Travolta is the subject of a form of shared cultural consciousness prevalent across the internet: memes.
What is a Meme?
Anyone who has spent time online has undoubtedly come across a meme. They are shared between friends, coworkers, and even by businesses via social media. Memes can be broad in scope or contain content tailored to a specific group and its interests, such as law students and the cases they have read (or should have read). Memes generally take the form of a recognizable image or GIF, usually with text superimposed, that tells a joke or makes a relatable reference to a particular experience.
Despite their now-ubiquitous association with the internet and social media, the concept of memes originated in early twentieth-century sociology and evolutionary biology to explain how culture is passed down between generations. The word itself was first used in Richard Dawkins’ book on theories of human evolution, “The Selfish Gene,” to refer to a unit of cultural transmission. As the concept evolved, the definition became more specific. Merriam-Webster defines a meme as “an idea, behavior, style, or usage that spreads from person to person within a culture.” Incidentally, this concept of “spread” or transmission is where the concept of “viral” comes from.
In the internet context, memes provide a simple method of sharing concepts and ideas en masse and are easily accessible and relatable to a broad audience. The key feature of memes is their universality. A specific meme has an assigned context or meaning that is intended to be implicitly understood by its viewer, and that meaning is taken seriously. There are websites dedicated to the history and proper use of memes, and even online forums dedicated to pointing out humorous misuses of a meme’s inherent context.
Memes as Original Works
Memes are collectively understood and transmitted as a cultural unit, but this raises an important question: who owns a meme? Or perhaps more accurately, who is the true author of a meme? On one hand, memes are user-generated, creative works attributed to an individual creator. On the other, they are derivative, referential works that are based largely on previously existing works.
American copyright law protects an author’s original works from being used improperly by unauthorized parties. Section 102 of the Copyright Act of 1976 protects “original works of authorship fixed in any tangible medium of expression,” including pictorial, graphic, and motion picture works. These protections include, among others, the exclusive right to reproduce, distribute, and create derivative works from the original work. Despite being a relatively recent phenomenon, memes have begun to emerge as copyrighted and trademarked works under the law. Grumpy Cat, Ltd v. Grenade Beverage, LLC and Furie v. Infowars, LLC concerned for-profit companies’ use of, and profiting from, the images of famous memes, the dour-faced Tardar Sauce the Cat and Pepe the Frog, respectively.
While these lawsuits are not identical, they demonstrate the emergence of memes as recognized, copyrighted works. Both Grumpy Cat and Furie concern the improper use of original content of meme authors by unauthorized parties. In this sense, memes are original, creative works that are generated by an author, and therefore that author reserves exclusive rights under the law.
Original Content or Intellectual Property Theft?
The underlying issue with most memes, however, is that they are not wholly original. Imposing an image or text onto another image is a creative and surprisingly complex exercise and captioning or providing context to an idea generates unique content. But unlike Grumpy Cat and Pepe the Frog, the problem is that the original images being used often come from an existing intellectual property. “Confused John Travolta” is taken from a scene in Pulp Fiction, “excited Leonardo DiCaprio” comes from a scene in Once Upon a Time… in Hollywood, and even the awkward monkey puppet originated in Ōkiku naru Ko, an obscure television show from the late fifties.
Regardless of the originality of the accompanying text, memes are regularly created from the copyrighted property of others. The Copyright Act protects authors from derivative work, or a work that is “based on… one or more already existing works.” Common forms of derivative works are movies based on books or covers of songs performed by another artist. Derivative works violate an author’s exclusive rights to their original work. Memes are a form of derivative work in that they are based on the already existing original work, and therefore are prohibited under copyright law.
The Copyright Act does, however, provide exceptions to the use of another’s original work in the form of the fair use doctrine in Section 107. Fair use provides exceptions to the protection of copyrighted works and is assessed through examination of four factors. The first of these factors considers “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” Memes – by definition – are cultural tools used to communicate ideas between groups and are generally not for commercial purposes. Memes about law school or some other experience that use images from a copyrighted film are not profiting from that film beyond maybe a few laughs and an enhanced social connection. As a result, memes themselves are unlikely to be found to violate copyright laws in that they are created within the scope of fair use. Additionally, from a practical standpoint, prosecution for copyright infringement would be challenging to pursue against a largely anonymous group of online creators.
Memes and Advertising
Memes, on their face, are likely innocuous enough as anonymous, fair use entities, to prevent their creators from facing liability for copyright infringement. This outlook may, however, change when fair use reverts back into monetization. Memes have become a significant cultural force; as a result, companies are looking to cash in on their popularity. Specifically, companies are looking to utilize memes and social media to connect with a younger audience that is already at-home on the internet.
One example of this phenomenon is the “Arthur” meme. This meme features a close-up image of Arthur’s clenched fist from an old episode of the PBS cartoon. It has gained life on social media as a common expression of anger, jokingly or otherwise. Its days as merely a collective joke have since passed. Well-known brands such as Gucci and Ruffles have both used this meme on their own social media accounts to promote their respective products. In other words, they are now using derivative works for commercial purposes. While the memes were previously protected from copyright infringement under fair use, their continued use and popularity has brought them back into commercial use. Although only attempting to capitalize on a trend, these companies may have violated the intellectual property rights of the original author.
Of course, there are possible remedies to copyright infringement. A simple cease and desist letter to delete an infringing post is one method. Licensing agreements are also increasingly common in advertising and social media, and otherwise copyrighted properties are regularly used by businesses to sell their products and services. Unlike the average meme-creator, businesses are much easier to identify, and therefore easier to enforce copyright infringement against. But this last point creates a further gray area in the use of memes: advertising on meme accounts.
Future of Memes and Copyright Law
The rise of memes has inevitably given rise to meme aggregator accounts – social media accounts that collect content from across the internet and re-package it into a single location. These accounts have been accused of plagiarism, as well as appropriating content from other authors, but one area that is less clear is their monetization of the intellectual property of others. These accounts collectively have millions of followers and can generate substantial revenue from advertisements and paid posts, but they often violate copyright law in the process by profiting off the original work of others.
Meme-based advertising using commercial intellectual property like movies and television series is a clear violation, but what is less clear is whether their use of non-commercial memes generated on the internet by anonymous users is also a violation. Principles of copyright law suggest that it should be – it is the use of and profiting from another’s original work. But the anonymity of the original authors and their claim to the work is a less obvious connection. As evidenced by Grumpy Cat and Furie, truly original memes can be monetized, but proving true ownership of a work that is in constant, referential revision is difficult, if not impossible to prove.
Memes can be monetized, but there are several factors that need to be considered before one can determine exactly who has the right to monetize them. Some cases of intellectual property ownership seem clear, but the very nature of memes presents a number of issues with identification of ownership. To make things more challenging, there is not much legal authority on the intellectual property rights of memes. Copyright law is well established, but its application to the constant creation of internet content is still in its infancy. Given the dominant rise of social media, however, this subject is likely to be examined in depth in the years to come. For now, the law on the matter of memes is like John Travolta. It might be dressed in a nice suit, but it is still looking around the room for answers, or at least some direction on how to proceed.