Memes: The Creative Culture of Web 2.0 Getting Around IP Law.

Internet-Memes are actually full of  interesting legal issues. They use someone else’s image (protected by copyright), and even sometimes a trademarked phrase, word, or design. The reuse of the image to produce a new work or commentary is arguably protected by fair use in most cases, which is probably one reason that there are not a slew of contributory copyright infringement or inducement of infringement  lawsuits against sites like memegenerator. But I have another theory as to why the rightsholders are not fighting the meme fad.

Companies go to tremendous trouble to ferociously protect their trademarks and copyrights. This presents obstacles to all sorts of visual art, musical creation, business enterprises, and so forth. The popularity of memes may have emerged because it is a way to create commentary and interact with media in a way that doesn’t get you cease and desist orders. No one will threaten a lawsuit if I post a “Good Guy Greg” meme with my own text, it is extremely unlikely that Greg (or his counsel) would write to me to take it down- and not just because he is a good guy. It would be a tremendous effort for a typical citizen to undertake- expensive and time consuming- to even try to fight such a battle.

However, not all memes are owned by someone unable to effectively enforce the relevant legal rights. Many memes, like Condescending Wonka and Unsure Fry, are based on Copyrighted Images owned by large companies with lots of resources to pursue legal action.  A great example of my theory is the meme “The Most Interesting Man In the World.” My theory is that Dos Equis made a savvy business decision: let the internet claim, remix, and play with this trademark. This is the best advertising model ever: let the consumers make, remix, post, and link your product and its symbol. (Remember, there is a bottle of XX on the table in each “Most Interesting Man” meme.) The trade-off that XX makes is that they cannot control the content of the text: it might be terribly racist, it might be anti-alcohol, it might condone war crimes, etc. Maybe Cervecería Cuauhtémoc-Moctezuma brewery decided that US 1st amendment protections would effectively immunize them from lawsuits about hate speech. Maybe they thought they could disavow any connection between their company and the message of the meme. Maybe they just figured the free advertising was worth the risk.

The bottom line is this: There is sometimes a tension between exercising legal rights and making smart business decisions. In the culture of the internet, I think successful businesses will hesitate to send out cease-and-desist letters in favor of letting their trademark or copyright be shared on a massive scale. This could signal an interesting shift from 20th century IP law to 21st century IP law.

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