Even though they seem free and open to use, internet memes are subject to the same copyright laws as any general advertisement. Therefore, a company wishing to profit from a trademarked meme should get an appropriate license to use any photo, video or music in a standard advertisement. There may be an exception if the “fair use” doctrine applies to the meme.
A recent example involves Christopher Gordon, the mastermind behind “The Crazy Honey Badger.” His meme went viral in early 2011, eventually leading to nearly 70 million views. Gordon quickly copyrighted the entire narration, including the phrase “Honey Badger Don’t Care.” Nevertheless, two companies used the video and the phrase to make money off the honey badger’s popularity. Gordon took both companies to court for trademark infringement, unfair completion, copyright infringement and trademark dilution.
Even though the meme was on YouTube and free to view, Gordon still owned the rights to it. An outside company should not have marketed merchandise using “honey badger” imagery or catchphrases without his consent, and even then, he would be entitled to a cut of the profits.
Creating a humorous and well-made internet meme involves time, energy and intelligence. It is a personal creative product; as such, it is under the same protection as other creative products, like 20-second advertisements or a 300-page novel.
Unfortunately, few people understand the laws regarding internet memes. Their playful and informal nature makes them susceptible to infringement, so that others can profit from their success. These trademark infringements may occur due to ignorance, but ignorance does not put people above the law.
Klein Trial Lawyers has years of experience helping businesses defend their intellectual property. If you think someone is infringing on your patent or trademark, consult our licensed trademark attorneys to learn more about your legal options.
[Did You Know: The Honey Badger narrator has his own website, where he offers t-shirts, stuffed animals, books and comedic audio recordings.]
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