Shayna Jan is a 3L J.D. Candidate at Osgoode Hall Law School, enrolled in Professor David Vaver’s 2021-2022 Intellectual Property Law & Technology Intensive Program. As part of the course requirements, students were asked to write a blog on a topic of their choice.
It’s no secret that memes have taken the internet by storm. Whether they’re coming from your dad, who finally posted a Bernie Sanders mitten meme to his Facebook feed, a year late, after pestering you for help (good luck, he now thinks you’re a tech tycoon and you will never see another day of peace) or your kid sister, who continues to remind you how old twenty-four is –memes are the universal language of laughter.
A meme is simply a photo or video with text overlaid. This text usually describes the image and outlines a feeling or idea that is culturally relevant and relatable. Memes exist in collections, as they are often reposted by various creators, adding slight alterations. The term “meme” was coined in 1976 by Richard Dawkins, who likened them to genes, because of how quickly they replicate and spread.
The etymology of the word may make sense, but can the same image be copied over and over without intellectual property repercussions?
Copyrighting a Meme
In Canada, copyright protection is afforded to every original literary, dramatic, musical, and artistic work that is fixed. Although originality seems like a low threshold to meet, memes may not exactly make the cut.
Memes that contain both artistic and literary components may comprise both an artistic and literary work: originality may exist in their combination. Multiple elements selected or arranged in an original way, may also qualify the meme as a protected compilation.
The next component to copyright is authorship. Although the term “author” is not defined in the federal statute, the first owner of copyright is presumed to be the person who creates the work. This can become difficult to track with memes, as they often appear out of nowhere, on anonymously-run meme pages, such as @memezar and @insta.single. Although TikTok has simplified source tracking, as individual creators have been known to go viral for their content, knowing the identity of the original poster doesn’t always allow authorship to be easily ascertained, as other creators often replicate memes, adding their own twist.
Another key component of copyright, is originality: the work must be more than a mere copy (CCH Canadian Ltd v. LSUC). The author need not prove their work is entirely novel or, as Lady Gaga would say, “show-stopping, spectacular, never the same, totally unique, completely not ever been done before.” They must demonstrate only that their expression required skill and judgment. This may become tricky in the context of social media, as memes only become popular by copying and reposting. However, while memes reference and communicate with one another, any changes beyond the trivial and mechanical may meet the originality threshold, even if the later work infringes the earlier
Lastly, fixation requirements may also be difficult to prove, especially because memes arguably exist in groups. While one image or video is fixed, collections are constantly changing.
Is Infringement Even Possible Then?
While the protection of memes remains unclear and unresolved, plaintiffs can claim copyright, trademark, and personality rights in the underlying images. According to s.3(1) of the Copyright Act, only rightsholders can reproduce their work or “any substantial part thereof.” Copying the whole or a substantial part of a meme could therefore constitute infringement even if new matter is added.
This may become a concern in Canada only when memes are used in a commercial context, as the Copyright Act allows exceptions for non-commercial user-generated content (s.29.21). Infringement may however occur where brands use meme marketing to profit off popularized images — as when, in the US context, Grumpy Cat sued coffee company, Grenade, and Kim Kardashian sued fast fashion brand, Missguided, for using memes to sell merchandise.
On the flip side, many companies welcome the meme-ification of their brand, because of the free publicity they receive. This was seen with Ocean Spray and, more recently, with the brands responding to Emily Zugay’s logo redesigns.
One defence to copyright infringement is fair dealing for the purpose of parody or satire (s.29 of the Copyright Act). However, United Airlines Inc. v. Cooperstock holds that, to be allowable, parodies that draw on original works must exhibit noticeable differences. New memes do not usually meet this criterion. If correct, it would affect many forms of parody, such as comedy that pull verbatim from the original.
All this to say – repost with caution, because the scope of what is and isn’t copyrightable or infringing creates problems by the day.