Memes: You’re Infringing, and You Might Not Know It

A meme is kind of like a cell phone. Both are packaged as dynamic wholes, but within that packaging, there lurks a number of IP parts.  For a meme, like a cell phone, the parts come together to create a working object - generally, a humorous concept that spreads virally. But there's a danger in seeing the forest for the trees.

If you're thinking that no one owns the IP parts of a meme, then you're wrong. And if you're thinking memes are freely available for your corporate purposes, then you're setting yourself up for an infringement lawsuit.

Scott J. Slavick, of Brinks Hofer Gilson & Lione, recently offered some insights on memes and IP infringement. His Law.com article, I Can Haz Copyright Infringement? Internet Memes and Intellectual Property Risks, points out that marketers might easily assume that memes are unprotectable as intellectual property. Likewise, there's the attitude that copyrights and trademarks be damned in light of fair use. But that's not the case, especially when a meme's use is commercial.

So how do you protect yourself? Slavick offers some advice on lessening the IP risks associated with memes:

• Determine who might claim IP rights in the meme.
• Dig into the layers of IP protection. The meme's creator might hold the copyright, but what if the meme incorporates third-party works, trademarks, or rights of publicity (e.g., a meme consisting of an original caption but superimposed over a Seinfeld character)?
• Move at the speed-of-the-meme. In other words, investigations and licensing negotiations have to be done quickly because a fast internet burn is at the heart of every meme.

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