MEMES
With each meme so rapidly shared among countless anonymous users of the Internet, and countless amendments clamped on to their original forms, how can IP rights be enforced?
Last year, Coca-Cola-owned beverage company VitaminWater capitalised on the cool factor of the meme, bringing together some of the most popular and recognisable examples (’Success Kid’, ‘Sexy Sax Man’, ‘Nyan Cat’) into a television commercial.
Back in the UK, Virgin Media integrated the image of ‘Success Kid’ into its recent HD campaign in a bid to catch the attention of a whole new group of potential customers.
‘Success Kid’ had undergone quite an online journey before
appearing in a national
campaign for a well-known telecommunications company. Te creator of the image, Laney Griner, uploaded the photograph of her son, or ‘Success Kid’, to her Flickr account and Getty Images in 2007.
Less than a year aſter the initial upload, ‘Success Kid’ had become something of a proto-meme. MySpace users found Griner’s snapshot and by early 2008 were adding their own captions to the image.
In 2011, a topic dedicated to the image was established on blogging site Tumblr, and just one year on, ‘Success Kid’ was appearing on billboards across the UK.
Virgin Media contacted and paid Griner for use of her picture, but for every authorised use of the photograph there are many more used without the owner’s permission.
In 2008, street artist Shepard Fairey created a poster in aid of Barack Obama’s presidential campaign, a stencil portrait
of the then-
candidate Obama in a distinctive pop art colour palette of red, off-white and blue, captioned with the word ‘hope’.
It was immediately popular, the poster image soon appearing on T-shirts and badges, and before long parodies began flourishing on the Internet.
Despite its non-Internet beginnings, the poster, or the idea of the poster, had become a meme. However, it was based on a photograph owned by the Associated Press (AP). Te AP took legal action against Fairey, demanding credit and compensation for his use of their image.
“VIRAL SPIRAL ADOPTS ITS OWN RESEARCH METHODS TO TRACK DOWN INFRINGERS, IDENTIFYING PLACES WHERE INFRINGEMENT IS COMMON, AS WELL AS USING TOOLS PROVIDED BY YOUTUBE.”
Anthony Falzone, former executive director of Te Fair Use Project at Stanford University, defended Fairey during proceedings, asserting that use of the photograph was protected by fair use, and the parties settled out of court in 2011.
Te Fair Use Project is a pro bono organisation that provides legal advice to creators who want to rely on fair use to create their work while ensuring their work complies with US copyright laws. It also provides legal representation to those creators sued for copyright infringement.
Given the international reach of the poster image, perpetuated by the Internet, and the thousands of dollars that changed hands in the distribution of Fairey’s work (none of which he claims to have received) to what extent can the ‘fair use’ defence apply?
“A lot of his own original expression went into making that poster, notwithstanding the fact that he used an AP photograph as a reference,” says Julie Ahrens, director of copyright and fair use in Stanford Law School’s Center for Internet and Society, and a member of the Fair Use Project.
Ahrens describes the Internet meme as part of a new ‘remix’ culture, where the ultimate goal is to go viral. Different copyright rules apply in the remix culture as the original work does not belong to the meme creator.
So as a meme creator, if you modify original content, and your modified content becomes successful online, where does it stand in relation to the original content, and what would your rights be over it?
“You own the copyright for your original expression but you do not own copyright over the parts of the article that are not original to you,” she says.
22
Trademarks Brands and the Internet Volume 2, Issue 1
www.worldipreview.com
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