Protecting Memes: Can You Own a Viral Sensation?

By Kimberly McLean

In the age of the internet, memes are a universal language. A meme is a piece of content, typically an image, video, text, or a combination of these, that spreads rapidly across the internet, often with humorous, relatable, or satirical undertones.  But behind the laughter lies a complex web of intellectual property (IP) questions: can memes be protected? Who owns them? And what happens when a viral sensation becomes big business?

Memes often repurpose existing material, such as movie stills, famous photographs, or viral videos. Some examples include the “Distracted Boyfriend” meme, which uses a stock photo of a man turning to look at another woman, or the “Success Kid” meme, featuring a toddler clenching his fist with a determined expression.

Legally, these original works are protected by copyright. When someone uses copyrighted works to create a meme, they’re walking a fine line between creativity and infringement.

Under the fair use doctrine, the creative material added may not infringe copyright in the work if the material adds new meaning, messages, or value. For example, fair use may apply when someone uses copyrighted works for commentary, criticism, or parody.  However, if the meme is used commercially without permission, fair use protection can fade.

When Memes Meet Trademarks

Some memes incorporate logos, slogans, or brand images, raising trademark concerns. For instance, memes parodying famous brands could potentially raise legal concerns, like the dispute between Louis Vuitton and Haute Diggity Dog over parody products, though clear examples involving memes specifically remain scarce. Brand owners often protect their trademarks aggressively against association with inappropriate content. However, parody can sometimes be a defense in these cases.

The Business of Memes

Memes aren’t just for laughs; they’re lucrative. Viral memes like Disaster Girl have been sold as NFTs (non-fungible tokens) fetching tens of thousands of dollars. Meme creators can monetize their work by owning the copyright in both the original images and the material added and licensing them for merchandise or advertising.

Memes and The Right of Publicity

The right of publicity protects an individual’s name, image, or likeness from being used for commercial purposes without consent. This law is often invoked when memes incorporate recognizable faces, voices, or identities, particularly of celebrities or public figures. While many memes fall under free speech or fair use when shared for humor or commentary, legal issues can arise if the meme is used in advertising, branding, or other commercial contexts.

Protecting Your Memes

If you’ve created an original meme, copyright law may safeguard it. Registering the copyright offers stronger protections, especially for commercial use. Trademarks may also apply if the meme becomes associated with a brand or product.

Final Thoughts

Memes are a cornerstone of internet culture, but their legal status remains murky. Meme creators should tread carefully, balancing humor and respect for IP laws. Whether you are a meme maker or a brand jumping on a trend, understanding the rules can ensure that your content spreads joy without landing you in a courtroom.

Kimberly McLean is Of Counsel with Fishman Stewart and has over 20 years of experience in IP law, focusing on patent prosecution and counseling in electrical arts, including software, cloud computing, blockchain, multimedia systems, autonomous vehicles, and artificial intelligence.  As a former primary patent examiner at the US Patent and Trademark Office, she leverages her knowledge and experience to achieve  successful outcomes for her clients.