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Viral Internet memes create interesting IP issues

Originally published in AdvocateDaily.com

The power and speed with which social media can disseminate popular catchphrases and images, also known as memes, has presented interesting legal issues, Toronto intellectual property lawyer John Simpson writes in The Lawyers Weekly.

“Unlike catchphrases of 20 (or even 10) years ago — for example, Donald Trump’s ‘You’re Fired!’ — an Internet meme that’s born today can be known around the world within minutes,” writes Simpson. “Think of Katy Perry’s ‘Left Shark’ from her Super Bowl halftime show. Or the ‘Ice Bucket Challenge.’ Or Seattle Seahawks running back Marshawn Lynch’s ‘I’m just here so I won’t get fined.’”

Simpson, principal of Shift Law, writes in the legal publication that the power of social media can create tremendous commercial value in these memes — almost instantaneously. He notes the recent efforts by celebrities like Perry and Taylor Swift to secure trademark protection for catchphrases and song lyrics that are associated with them.

This raises interesting issues around who, if anyone, can exploit property rights in Internet memes, Simpson writes.

“‘You’re Fired’ only became a popular catchphrase a decade ago because Trump and the producers of The Apprentice created it and spent a lot of money creating goodwill in the phrase. Obviously, it belonged to them,” he writes in the article. “But Perry didn’t create the “Left Shark” meme herself. And she didn’t do anything in particular to fuel its value. Social media did. So how can she say it belongs to her?”

After a clumsy attempt to claim copyright infringement against a small 3-D printing company that started selling replicas of “Left Shark” soon after the Super Bowl, Team Perry followed with applications to register “Left Shark” (the phrase and the actual image) as trademarks for “live musical and dance performances” and various merchandise on an “intent to use” basis.

“Ultimately, this too seems misguided if the goal is to harness the immediate commercial value in the meme,” Simpson writes. “In fact, the application to register the image has recently been rejected on the basis that consumers would not associate the image solely with Perry. With respect to the phrase, ‘Left Shark,' even assuming it can still function as a trademark (i.e. point to a single commercial source of origin), it would only secure an exclusive right to use the phrase as brand name for a defined set of goods and services. It wouldn’t necessarily prevent others from dressing up as the ‘Left Shark,’ or using the phrase for other purposes.”

Simpson writes in The Lawyers Weekly that unless you invest in the meme and create something new with it, few will recognize or remember the meme by the time the Trademarks Office reviews and approves the application.

“For as rapidly as the commercial value of an Internet meme can be fueled by the fire of social media, it can vanish as the meme is forgotten and others fill its place,” he writes.

He notes that in in Canada, s. 9(1)(k) of the Trade-marks Act could offer more immediate protection for an Internet meme that is closely connected with an individual, but it’s unclear how effective it would be in the circumstances where an Internet meme is created via social media.

“Ultimately, to harness the value in an Internet meme for oneself, one must create something new with it and protect the value in that. That is because, generally speaking, intellectual property law is not about rewarding opportunists,” Simpson writes in the legal publication. “It is about rewarding innovation, creativity and investment.”

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