This article is written in conjunction with the IE Law Society.By Lea Hochholdinger
In the Wild West of the internet, memes are the universal language. They’re hilarious, shareable, and relatable – the online equivalent of a knowing wink. They are cultural snapshots that connect people across the digital world.
However, as they spread rapidly across social media, these viral creations often brush up against the boundaries of intellectual property law. For lawyers, memes aren’t just a source of casual amusement; they present a complex and intriguing legal puzzle waiting to be solved.
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What is a Meme?
Memes are the bridging language between everyone across the globe, needless to say, they are also a very prominent copyright violation. Most memes are built on copyrighted materials: stock photos, film stills, or artwork. So, whilst you are thinking about what sarcastic caption you are going to slap on a grump-looking cat, consider, are you committing a low-level crime?
As an example take the infamous “Success Kid” meme! The toddler with a sandy fist. This quickly became a global sensation, but the photo rights were still fully owned by his mother. She was able to successfully license this image, for everything from advertisements to marketing campaigns.
But when someone tries to profit off a meme without permission, that’s when lawyers pop out of the bushes faster than you can say, “It’s just a joke!”
Copyright: Is Your Meme Breaking the Law?
Under intellectual property rules, any original photo, artwork, or video is protected by copyright. Sharing, editing, or profiting from it without permission is a potential violation. Yes, even that picture of Shrek could be a violation.
Copyright law concerns what is copied and how it is used and applied. This is where “fair use” enters the conversation, attempting to determine whether your meme is an innocent remix or a blatant infringement.
Fair Use: Can Memes Escape the Legal Guillotine?
Fair use is every meme enthusiast’s defense when it comes to copyright infringement. This allows for limited use of copyrighted materials without permission for purposes like parody, education, or criticism. On paper, it’s a meme lover’s dream. But in reality, applying fair use is as tricky as mastering a TikTok dance trend.
Let’s bring this closer to home: how does this play out in Spain and the EU?
Spanish copyright law is part of a broader EU framework that follows strict rules under the InfoSoc Directive. While “fair use” as a term technically doesn’t exist in EU law, exceptions like parody or quotation can protect memes—provided they meet certain criteria.
This sounds perfect for memes on paper, but the real-world application is… tricky.
Courts (Spain/EU) consider the following factors when deciding if fair use applies:
- Purpose and character: Is your meme transformative, or just “LOL, look at this stock photo with Comic Sans”?
- Nature of the work: Did you memorise a creative masterpiece or a bland corporate headshot? The former is harder to defend.
- The amount used: Did you crop, edit, or remix the original image—or did you just repost the entire thing unchanged?
- Effect on the market: Are you hurting the copyright holder’s ability to make money? (Hint: if your meme ends up on a hoodie being sold online, the answer is probably yes.) In Spain, like across the EU, economic harm—such as memes being sold on merchandise—could make you liable.
In short, if your meme isn’t radically different from the original work, you might be skating on legally thin ice. Copyright law is the strict chaperone at the meme party, making sure no one has too much fun without permission. In Spain and the EU, the “parody exception” could save your meme, but only if it truly transforms the original and avoids market harm. Otherwise, copyright law is the stern chaperone of the meme fiesta, making sure no one dances too far from the rules.
Trademark Trouble: Meme-ing Brands Without Permission
Copyright isn’t the only IP monster lurking in meme culture; trademarks are, too. Trademarks, guardians of logos, slogans, and brand identities, can also rear their litigious heads. Companies spend millions protecting their trademarks, and they won’t hesitate to sue if your meme accidentally (or intentionally) tarnishes their brand.
As an example the Nike logo. If you were to add a sarcastic caption to their logo, you might find yourself in a courtroom explaining why your meme is not a “commercial dilution” of their brand. The same goes for any attempt to monetize a meme featuring a recognizable trademark. Brands may laugh at free publicity, but when you start cashing in, their tolerance evaporates faster than a trending TikTok.
Memes for Sale: The Rise of Licensing
The internet might seem like a lawless playground, but meme creators are increasingly licensing their work to maintain control and monetize their viral fame. “Disaster Girl,” the smirking child in front of a burning house, recently sold her meme as an NFT for a hefty sum. Meanwhile, stock photo companies like Getty Images are cashing in on their accidental meme stars, offering commercial licenses for popular images.
Trends like these raise big questions regarding meme culture and the legal world. If every viral image becomes an internet sensation, a commodity, does this stifle creativity? Will every meme creator have to consult a lawyer first and scroll through endless contracts before they can post their next meme? Most importantly, the question we ask ourselves every day when we see the most common contract is: Does anyone ever really read the terms and conditions?
Lawyer Up or LOL?
The legal risks are low if you’re a casual meme enthusiast just tagging your friends. Most copyright holders don’t have the resources (or the desire) to pursue small-time offenders. But if you’re an influencer or business using memes for profit, beware: memes may be free to share, but lawsuits are not.
Want to stay safe while sharing memes? Here’s how:
- Transform the content: Remix, crop, or add your unique touch to make it different from the original.
- Credit the creator: While not a legal shield, it shows good faith and might prevent disputes.
- Stick to safe sources: Use public domain, Creative Commons, or licensed content when possible.
- Avoid unaltered memes for profit: Monetizing memes without changes increases your legal risks.
Bottom line? Casual users can relax, but influencers and businesses need to meme responsibly.
Memes in the Courtroom of Public Opinion
The internet’s meme culture thrives on humour, creativity, and a healthy dose of chaos. But as these viral snippets become commercialized and legally scrutinized, the line between harmless fun and intellectual property infringement is blurrier than Bigfoot in a meme about bad cameras.
So, next time you’re tempted to turn a random image into your magnum opus, remember: the law might not find it as funny as your friends do. Meme responsibly, or you might end up with a punchline that costs you more than a few likes.
Featured image courtesy of Anatoliy Demyanchuk on Dribbble
