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Memes and Trademarks: It’s All Fun and Games Until Someone Gets Hurt **Attorney Advertising **

Memes come in the form of humorous videos, graphics, or texts that are then shared and spread rapidly by internet users. And we’ve all giggled at a meme or two, but the person who developed the image or content that’s being altered or made fun of in the meme probably finds this less humorous. They have to sit back and watch their work spread around the internet, sometimes with no practical legal recourse.
That’s because in general, sharing of memes for a noncommercial purpose is considered fair use of intellectual property if they are used for the purposes of commentary, criticism, reporting, or teaching. Parody and satire are also generally considered to be a fair use of an image under the US Copyright Act, but be aware not all foreign copyright law provides for a fair use defense.
Artists have tried to fight back, but have mostly been unsuccessful.  Remember the Pepe Frog meme? The creator of the Pepe Frog cartoon was not happy when his cartoon became a meme affiliated with the Alt-Right and turned into a hate symbol. He’s tried many times to sue for infringement over the years with no success, as there are still many grey areas in the courts regarding memes and fair use.
But, memes are not always protected under fair use…
It’s still wise to take caution when creating or sharing a meme. Some artists have been successful in copyrighting memes or parts of memes and enforcing their rights. For example, the meme Awkward Penguin came from a photo used in National Geographic. Getty Images, the owner of the picture, went after everyone who created the meme, effectively ending use.
Memes may also encompass other intellectual property rights such as right of privacy or publicity that can be infringed.
Is It in Your Best Interest to Enforce Trademark Rights on a Meme?
Even if you could possibly enforce your trademark rights regarding a meme, it may not be in your company’s best interest.  Dos Equis may not have intended for The Most Interesting Man in the World to become an internationally known meme, but in doing so, it elevated the marketing campaign to a level it may not have otherwise achieved.
Trademarking a Meme
If you’re considering trademarking an image that has become a meme, or you want to know how you can enforce the trademark rights you already have, we invite you to contact our intellectual property attorneys to discuss your options. We have offices in Charleston and Brooklyn, but serve clients worldwide.  To schedule a consultation, simply call 888-666-0062.
DISCLAIMER: The information contained in this article is for informational purposes only and is not legal advice or a substitute for obtaining legal advice from an attorney.
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