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Internet Memes, Catch Phrases and IP Rights

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Take a photo, add a header and footer and voilà, you have yourself a meme. It is often really that simple. If your meme happens to be culturally relevant and creative or if the right audience happens to see it, the creation could very well take on a life of its own. The advertising revenues associated with social media outlets like Facebook and Instagram have given “likes” “shares” and “follows” serious weight. A steady flow of captivating content ostensibly translates into increased web traffic and thus more potential consumers, so advertisers and entrepreneurs are eager to attach themselves to the latest and greatest Internet or cultural sensations.

Josh Ostrovsky or @TheFatJewish, as his more than 3.1 million followers on Instagram know him, has made a lucrative career dealing in Internet memes. In 2014, Ostrovsky was getting paid over $2000 for product placement posts on his account. From a legal perspective, it is interesting to note that a significant amount of the content posted to Ostrovsky’s account was not his own. It would be more accurate to classify him more as a curator of Internet memes rather than a creator.

Given the number of people vying for this sort of attention on the Internet it is unsurprising that celebrities are increasingly seeking protection for memes and catch phrases associated with them. In a recent article in the Toronto Star, Shift Law’s John Simpson commented on this phenomenon in the world of professional sports and noted that trademark registration can help secure the value of and control the use of catch phrases associated with star athletes.

In the music industry, Taylor Swift has successfully trademarked a number of lyrics from her latest album “1989”. While the move potentially serves as a way to exclusively control a revenue stream from branded merchandise, protection in this case appears to be motivated by a desire to curtail unauthorised use by opportunistic users seeking to make money off of Swift’s intellectual property. This could take the form of Swift lyrics on low quality goods or associating the lyrics with off-brand messages or images. Trademark registration allows for a greater degree of control over the symbols, words or pictures in question.

Intellectual Property protection is, however, still grounded by certain realities and Katy Perry’s failed attempt to gain copyright protection for the now infamous “Left Shark” dancer from her 2015 Super Bowl performance is proof. An initial attempt to attain copyright protection failed as Perry does not own the rights to the costume itself.

As for trademark protection, section 9(1)(k) of the Canadian Trademarks Act states the following:

Prohibited marks

 9. (1) No person shall adopt in connection with a business, as a trade-mark or otherwise, any mark consisting of, or so nearly resembling as to be likely to be mistaken for,

(k) any matter that may falsely suggest a connection with any living individual;

 The “Left Shark” may have been a part of Perry’s performance but until it becomes inextricably linked to her personal brand, she is unlikely to receive much protection here in Canada without a trademark registration. The fact that she has been dressing up as the Left Shark in recent performances speaks to the fact that she may be attempting to make a link between the Perry brand and the Left Shark to reinforce whatever intellectual property rights she can assert in Left Shark.

In the meantime, opportunistic marketers will be circling the waters, attempting to extract any value they can from this and other fleeting Internet sensations.

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