Hey there. How may we help you today? The special? Sure. One portion coming right up.

Today’s special is partly inspired by an article I read about meme law, which is equally funny and interesting. It got me thinking about how we sometimes piggyback content from trends throughout our work as marketers, repurposing as we see fit and slapping our spin on it. Almost everyone does it - don’t kid yourself otherwise - and I dunno about you but for the most part I never give it a moment’s thought. 

This got me thinking, is sharing caring? What even qualifies as fair use? What does the Law say? What are the ethical implications for adapting someone else’s ideas and does it really matter if they never find out? And finally the big one… Can an individual truly own an idea?

For context, I’m gonna be talking about previous cases of infringement from memes, rather than e-com exclusively. But there’s obviously a lot of cross-over and I’ll explore that too. I hope you’re hungry, this one’s meaty.

The debate

Like any sensible scholar, I’ve recently been reading a lot about memes. There’s an interesting dynamic involved that the Hustle summarises as the meme paradox; content laws inhibit copying, but creating memes requires it to succeed, even function. 

The concept of a strand of culture that requires blatant copying might seem strange, but it shouldn’t. But whether it does or doesn’t, we’ll tackle that dish later. Obviously, this is a step away from marketing, but relax. The laws and principles are adjacent enough for it to be comparable so bare with me. 

As the hustle describes, there’s a paradox at the heart of all this memery as creating them largely involves taking someone else’s idea and putting your own spin on it. So the very existence of content laws is at odds with the reality of how these things function. 

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“Good faith”

The photographer who took the picture used in the ‘distracted boyfriend’ meme, Antonio Guilem, makes an interesting distinction. Saying that “each one of the people that use the [image] without the license are doing it illegally,” but “this is not the thing that really worries us, as they are just a group of people doing it in good faith, and we are not going to take any action.” 

Interesting thought process here, in that the photographer doesn’t mind that his work is being used illegally as long as it’s “in good faith”. Obviously it’s up to him how his work is used, it just raises the question about how he defines good faith and what he considers fair use. Can that sort of thing be left to creators to decide, or does that leave the door open for their own biases and personal beliefs to dictate who should suffer under the law? Obviously in this case it does, and is that really a bad thing? 

Much to think about. 

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“A mode of expression”

Another key factor in legal retaliation tends to be whether or not the offending party has benefited financially from their thievery. Kia Kamran, a copyright attorney in L.A. (a representative of many of the most infamous memes, might I add), stated that “when the general public is using a meme and it’s flourishing as a mode of expression, that’s OK. That’s the zeitgeist.” However, “when a commercial entity is doing it to shill some service, we’re going to go after them — and we don’t lose sleep over it".

But here’s a thought; if something is used for commercial gain, does that mean it ceases to be a mode of expression? I’m sure a few artists, architects and musicians would disagree. Not only does this raise questions about whether expression has to be separate from business to escape the clutches of the law, but also whether it can even be deemed expression if there is financial intent. 

One way or another, a lot of meme accounts inevitably end up making money. So by Kamran’s reckoning, should they be charged in retrospect? Or would the mere intent to (eventually) benefit from the borrowed image be deemed illegal?

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Some notable examples

Kamran’s ideology is one that a lot of creators share… Here are a few notable examples of the more successful lawsuits I could find. 

The creators of the Nyan and Keyboard Cat memes sued Warner Bros. and 5th Cell Media for using their images in a video game, winning a lot of money.

Next up; Grumpy Cat. The owner sued the founders of Grumpy Cat Grumppuccino iced coffee drinks and unsurprisingly won a huge settlement of $710k.

Matt Furie, the artist behind Pepe the Frog, sued Infowars and Alex Jones for selling posters that used the cartoon character. This particular case was settled for $15k in damages and Furie has gone on to sue several people over his cartoon’s use. 

So yeah. There are plenty of cases of financial incentives provoking the content’s owners to retaliate. But what happens when the financial incentive isn’t the issue? I’m so glad you asked.

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Success, kid?

In 2007 Laney Griner uploaded a picture of her son to Flickr, which then unbeknownst to her became a popular meme format known as ‘success kid’. Fast forward and the image is used by a fireworks company, which Griner successfully sues, arguing that it was an age-inappropriate product. In the eyes of the law, clear cut. 

Following this, in 2015 Griner disputed Republican Steve King using the image in his campaign, arguing that she didn’t endorse his political stance. This is more interesting in context as she’d previously allowed Barack Obama to use it (as well as various brands she’d licensed it to), the difference here being that she simply didn’t agree with King’s beliefs. 

Though she is obviously entitled to protest her son’s image being used to endorse a volatile racist, the debate that ensued is interesting. What if Griner had shared King’s beliefs but her son had not? How do freedom of expression and fair use function when the beliefs of the creator, user and subject don’t align? And even if that can be answered, is the justice system an adequate mediator for the debate?

Content creators’ decisions vary from case to case and often seem to be a matter of the individual’s discretion rather than legal distinction, leaving things quite unclear. So, what does the law actually say?

The law

Piggybacking trends and adapting existing content is nothing new. The general consensus seems to be that adjusting something and repurposing it as your own constitutes fair use. But where’s the line? What actually constitutes fair use? 

Copyrights are a bit of a mystery and the truth seems to elude most content creators. That, or they’re chancing their luck relying on the remarkably slim chance they won’t get caught. It’s a risky business, simply because if someone has got the rights to whatever content you’re ‘borrowing’ ideas from, they can come down on you like a tonne of bricks.

Alongside this, it’s worth remembering that illegal use of content, regardless of effectiveness, can harm the campaign if you’re called out. This opens you up to all sorts of bother and could lead to damaged reputation, legal action, and potentially cost you a fortune.

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Intellectual property and copyrights

At their most basic level, copyright laws prevent the use of original creative work without the owner’s permission. Very simple. Section 102 of the Copyright Act identifies broad categories of copyrightable material, including virtually anything that can be expressed in a tangible medium of expression. 

Influencers and brands are free to incorporate portions of another’s copyrighted material in their own promotional content, providing licenses are obtained before incorporating copyrighted material. In short, don’t take without asking (and most likely paying). This applies to the little stuff too, even an image displayed during a YouTube stream or a song in an Instagram reel technically requires permission.

However, these copyrights aren’t permanent. Those authors of literary and artistic works such as books and other writings, musical compositions, paintings, sculptures, computer programs and films are only protected for a minimum period of 50 years after the death of the author. Good news if you’re the patient sort.

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Industrial property

This can be broken down into trademarks (including a business's marketing) and geographical indications (which identify something as originating in a place where a given characteristic of the good is essentially attributable to its geographical origin).

Trademarks also extend to logos, names, and other key signifiers of a business’ identity. There are plenty of strategies you can employ to avoid ‘accidentally’ copying someone else’s marketing, too many to discuss here but well worth doing some more research if you’re interested. I’ve not got much to say on this, other than that it takes a specific type of idiot to copy someone else’s logo and be surprised when they get caught. But, moving on.

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Case study in photography

In 2018 hip-hop photographer Chi Modu engaged in legal battles with Biggie Smalls’ family, disputing them using images he had taken of the artist and claiming copyrights. He argued that because he had taken the picture he owned it, to which the family called him a parasite. The court decided they would have to settle it between them as neither had a legal claim over it.

Fast forward two years, Hypebeast use a picture of the rapper taken by Dana Ruth Lixenburg and is successfully sued. The picture is already widely used across the internet for a variety of things, as we’ve seen before the only legal distinction between this incident was that it was being used for commercial use. 

These two cases offer an interesting glance into the legal system. The first one is a bit more interesting in that even though both argued their own case for ownership over the images (familial and artistic) neither could lay claim to them. The difference between this case and the second is that Lixenburg clearly had a better knowledge of the law and applied for copyrights. This knowledge gave her an upper hand over Modi meaning that she benefited significantly more from her work.  

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The ethics 

I’m sure we can agree that’s enough law for one day. Time to think about the soft and gooey sensitive stuff, the ethical implications! Is borrowing ideas and adapting content good practice? There’s a lot to think about with this and I don’t expect to answer the question so simply. But here are a few considerations…

Authenticity, honesty and trust

Needless to say, piggybacking (I think we can call it that) a trend raises questions about the authenticity and honesty of the individual or organisation involved. If the intention is solely to exploit the trend without genuinely aligning with its values or purpose this can come across as misleading or manipulative. 

As a result, engaging in trend piggybacking without a genuine connection to the trend can severely erode consumer trust. If individuals or organisations are perceived as opportunistic or insincere in their attempts to ride a trend, it can damage their reputation and make consumers sceptical of their motives.

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Exploitation and cultural appropriation

Borrowing someone else’s ideas usually involves leveraging the efforts and creativity of others for personal gain. Whatever you may think, this can be seen as exploitative, especially if the original creators or contributors are not properly credited or compensated for their work.

In a similar vein, using content that originates from a specific culture without understanding or respecting the cultural context is culturally appropriate. It goes without saying that this is offensive and disrespectful and often perpetuates stereotypes or misrepresentations. 

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Diluting the trend and the inherent lack of originality

In simple terms, excessive piggybacking (for want of a better word) on a trend can dilute its meaning or significance. When too many people jump on the bandwagon the original message can become diluted or lost, undermining its impact or effectiveness and revealing the hollow financial motives of some of the involved parties.

Another large aspect of piggybacking trends is that it can be perceived as unoriginal or lacking creativity. It can give the impression that the individual or organisation is simply copying or imitating others rather than offering unique or valuable contributions. This aspect is particularly interesting and gives us some more food for thought, as I’ll get into shortly.

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The philosophy

Gooey ethics aside, are our original thoughts and ideas even as original as we think? Cultural theorist Rolland Barthes didn’t think so. As Barthes saw it, creativity is only a matter of how we process our experiences and repurpose what we’ve already seen into our own ideas. When someone creates something they believe that the ideas are their own, but Barthes argued that any idea they think of is an amalgamation of things they have experienced or seen. 

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The Death of the Author

Put simply, creators’ ideas are their own perception, interpretation and reflection of other people’s ideas that came before them. So what we create is a direct reflection of what we have seen others create. Even if we’re not actively emulating their work it is undoubtedly influencing our own because the creative process cannot be separated from our experienced consciousness.

For example… Writing; every word we use is already in existence and was created by someone else. All of these words have pre-existing meanings from cultures that predate our own. So although an author has written something, the very tools they’ve used to convey their ideas are built from someone else’s ideas, not to mention that the lived experience they have used to write is informed by every piece of culture they’ve ever consumed.

So in the context of marketing and content, sure we’re copying trends and ‘borrowing ideas’, but these ideas are themselves reinterpreted from other ideas the author has seen, so although ours are marginally less original than what we’re emulating everything is constantly informed by what came before it. By this rationale, the term originality (specifically in culture)  loses meaning as time goes on.

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Separating meaning from the author

Amid this conundrum of originality, Bathes also concluded that interpretations come to life in the mind of the reader, watcher and listener, rather than that of the author. We create meanings and interpret perceived value based on our own experiences and understanding of the world, naturally, this is personal to us and separate from the author.

A useful example of this is music without lyrics; the artist has made it with something in mind but it's the listener who attaches personal meaning based on their own experience. The artist has also listened to a huge amount of music before creating their own, so whatever they create echoes their own life and also whatever creative works they’ve experienced. The same can be said for any piece of content, written work, marketing material or anything else you can think of. 

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The conundrum of originality

So, when you think about it, ‘originality’ isn’t a very useful word after all. And using it in a legal context to decide whether someone has to pay vast sums of money to the ‘owner’ of an idea seems dubious after some consideration. In an ideal world, we might move past this very binary idea of thought ownership - ‘mine or not mine’ - but that’s an unrealistic expectation. 

People like the idea that they conceived an idea on their own. That it’s truly, unquestionably theirs. Their idea, their recognition, their reward. But let’s be honest, would the feeling of accomplishment be diminished if we acknowledged that our idea was a recycled amalgamation of other people’s ideas? It shouldn’t, but I’m sure plenty would disagree.  

Food for thought

Obviously, this all raises questions about creativity in general, problematising the idea that an individual can ever ‘own’ an idea outright no matter how much they argue. Section 102 stipulates that an individual cannot lay claim to an idea, unlike the work itself which is a very different kettle of fish. 

However, reality is not so easily compartmentalised. What is to separate an element of a piece of work from the idea that spawned it? Is a character in a film not as much an idea as a working part in a larger piece? Where is the line drawn?

Food for thought.

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Written by Conel Freeman Harrison - Marketing executive