Intellectual Property

Use of memes can give rise to numerous IP issues: Simpson

By Kirsten McMahon, AdvocateDaily.com Managing Editor

Toronto intellectual property lawyer John Simpson says there’s never a simple answer to whether it’s legally OK to use a meme.

“A meme — essentially a funny image or video that is copied, modified and rapidly spread on the internet — can give rise to any number of different legal issues relating to intellectual property. It might infringe copyright, trademark rights or personality rights, or some combination,” says Simpson, principal of IP and new media law boutique Shift Law. “And it may or may not be subject to a potential fair-dealing defence — it is always very fact-specific.”

He points to Canadian rock band Nickelback’s lead singer Chad Kroeger, who was featured in a political attack by U.S. President Donald Trump. The Canadian Press reports Twitter and YouTube removed a video meme Trump posted following a copyright claim filed by Warner Music Group, which owns some of the band’s songs.

“Within hours, Trump’s personal lawyer Rudy Giuliani tweeted the video again, and it took several hours before the clip was removed from his feed under another copyright claim,” CP reports.

The wire service notes the “Photograph” meme has a “storied history in internet culture.”

“Similarly doctored footage of the band’s 2005 music video has been recycled for nearly a decade as internet creators replaced the original photograph with a basket of cats, line graphs and many other humorous images,” CP reports.

“But Trump’s tweet carried a more serious tone, with Kroeger portrayed as clutching a framed photo of former vice-president Joe Biden, his son, a Ukrainian gas executive and another man. It was a reference to the president’s allegations that his Democratic rival dabbled in his son’s overseas business deals,” the article continues.

The wire service states that these types of situations are coming up more frequently as memes become part of popular culture. These images frequently fall under U.S. fair use or Canada’s fair dealing laws, but “as more public figures become part of memes that aren’t authorized or contradict the person’s own beliefs, some of them could fight back in the courts.”

Simpson tells AdvocateDaily.com that an equally important, if not more critical consideration is whether anyone will be motivated to take issue with the use of a meme.

“Someone without a legal basis to sue you may still do so because they’re offended by the meme, while someone who may have a strong legal basis to sue you may not care and may even like it,” he says, noting that the motivation to sue may have very little to do with the legal right at issue.

“Copyright is often used as a legal weapon by people who are offended by content for reasons that have nothing to do with their copyright interests,” Simpson says.

At the end of the day, Simpson says the legal debate is often only a theoretical one because of the temporary nature of memes.

“A legal action may take months to proceed, while a meme is active for a few days or weeks,” he says.

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