Can you own a meme?

We all remember a few months ago when the meme “friendship with Mudasir is over now Salman is my new best friend” sold for over fifty thousand dollars at auction. How did they achieve this? Memes are usually just seasonal chuckle fads that never seem to have much sentimental value let alone monetary, so again how is it even possible to market a meme? The way the auction managed it was by turning it into an NFT (a non-fungible token) which in layman’s terms is what is formed when digital art meets crypto currency. This answer though covers the aspect of how a meme can be sold, it does not cover whether the creator of a meme or meme format has rights over their creation, if for example it’s sold later on by someone else and this article covers just that.

Memes and Copyright

The first thought that must cross any one’s mind when considering ownership of memes is copyright. Copyright being what protects inventors, creators and authors form their work being exploited by other individuals or companies. So, aren’t all memes protected by copyright the moment they are generated? The answer is yes and no. No because many of the memes we see online are usually parodies or snippets from pre-existing media, these kinds of memes usually can not be protected by copyright as usually the media being used to make the meme has a copyright already on it. For example, Shrek memes, you could throw your own original material on it such as captions, however this would not substantiate ownership as Shrek is already copyrighted by DreamWorks studios. Now for the Yes, portion of the answer if your meme is completely your own or does not use media previously copyrighted you do own the meme as intellectual property under copyright. An example of this can be the “overly obsessed girlfriend” meme which is copyrighted and seeing that the meme is Laina Morris’s (the girl from the meme) actual likeness and was created by her for her YouTube channel makes it a copyrightable meme. The key here being originality for example the “overly obsessed boyfriend” meme ran into hot waters a few years ago because of its similarity to the aforementioned “overly obsessed girlfriend” meme. So meme-aholics would need to do more than just throwing in their own twist on a pre-existing meme to enjoy protection of copyright

What a copyright offers

Now that it’s been established that a meme is copyrightable, what does that mean for the creator? This means that though sharing that meme among friends in group chats or posting it on your twitter will not infringe copyright, using that meme for some form of monetary gain by an individual or a company will and can lead to a cease and desist order being issued to them by the creator of the meme along with damages. This also extends to using the meme in any form of commercial context. This can also mean if a person is the owner of a large media firm and wishes to use a meme to market it they may not be able to do it without fear of the aforementioned cease and desist order. There is, however, a loophole, something many YouTube viewers may already have heard of – fair use. Staying with in the ambits of fair use one can use a meme without the danger of legal action (successful legal action) being taken against them. Fair use again differs depending on the jurisdiction, but again a glance at model law can set up what the general requirements are; firstly if the use of the creation is for non-profit or educational purposes, secondly the nature of the copyright work, thirdly the portion of the creation used, and lastly the effect on the market of the work to be later sold. Most memes will qualify fair use as they are used for satire which qualifies it automatically, or used for criticism which also qualifies a meme for copyright fair use. So if a person owns a meme it may still be used for the above mentioned sharing or recreational purposes. This is good news for meme addicts as a cease and desist order every time you share a meme on your socials would get annoying and expensive very fast.

Is it that straight forward?

A lot of meme aficionados must be rejoicing at how they can finally make millions from selling the rights to their uber dank original memes. But all isn’t as it seems. So, if you want to enjoy protection of your intellectual property you do need to make sure it satisfies the Copyright law, you must have authorship, the work must be original and the work must be fixed in a tangible medium of expression. Now what authorship is jargon for you must be the creator/originator of said content, it helps if you have more works under your belt but not necessary. The next requirement is that the work must be original. This requirement really depends on your jurisdiction, however regardless it is not a stringent standard, most jurisdictions do accept work that is not a blatant rip off and has some originality. A new spin on a pre-existing meme could substantiate this, however as original as you can make it the stronger your copyright. Lastly it has to be fixed in a tangible medium of expression, what this means puts simply is your meme does not need to be final it does need to exist, luckily existing on the internet substantiates this.

Overall, memes are something to be enjoyed, they are the gift that keeps on giving. The fact you can own them though is very enticing from a commercial prospective. Memes by nature are made to be shared and they should be treated as such.