DePaul Journal of Art, Technology & Intellectual Property Law Volume 28 Issue 1 Fall 2017 Article 3 Y U No Let Me Share Memes?! - How Meme Culture Needs a Definitive Test for Noncommercial Speech Elizabeth Rocha Follow this and additional works at: https://via.library.depaul.edu/jatip Part of the Computer Law Commons, Cultural Heritage Law Commons, Entertainment, Arts, and Sports Law Commons, Intellectual Property Law Commons, Internet Law Commons, and the Science and Technology Law Commons Recommended Citation Elizabeth Rocha, Y U No Let Me Share Memes?! - How Meme Culture Needs a Definitive Test for Noncommercial Speech, 28 DePaul J. Art, Tech. & Intell. Prop. L. 37 (2019) Available at: https://via.library.depaul.edu/jatip/vol28/iss1/3 This Case Notes and Comments is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Journal of Art, Technology & Intellectual Property Law by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. Rocha: Y U No Let Me Share Memes?! - How Meme Culture Needs a Definitive Y U NO LET ME SHARE MEMES?! - HOW MEME CULTURE NEEDS A DEFINITIVE TEST FOR NONCOMMERCIAL SPEECH I. INTRODUCTION It is well accepted that today's society is heavily dependent on social media. Today roughly seven in ten Americans use social media to connect with one another.' More specifically, memes in recent years, have become an exceedingly popular form of communication. The Oxford English Dictionary defines a meme as: "[a]n image, video, piece of text, etc., typically humorous in nature, that is copied and spread rapidly by Internet users, often with slight variations."2 As memes become a standard form of communication, we are presented with the question of what are the legal implications, i.e. copyright and trademark infringement and violating an individual's right of publicity, of meme sharing? More specifically, what are the legal implications of meme sharing when the sharer is a business entity? Memes have become such a large part of society that research studies are being conducted over the course of several years.3 Researchers at the Indiana University Center for Complex Networks and Systems Research, with nearly $1 million in grant funding by the National Science Foundation, have spent six years researching memes.4 ' Social Media Fact Sheet, PEW RESEARCH CENTER: INTERNET, SCIENCE & TECH (2017), http://www.pewinternet.org/fact-sheet/social-media/ (last visited Nov. 14, 2017). 2 Meme, Oxford Dictionaries, https://en.oxforddictionaries.com/definition/meme (last visited Sep. 20, 2017). 3 Gabe Bergado, This is what $1 million in meme research looks like, THE DAILY DOT (May 12, 2016), https://www.dailydot.com/unclick/indiana- university-million-dollars-meme-research-nsf/. Researchers study any kind of information that gets communicated from a person to a person. The focus is to find how memes or ideas go from person to person on social media. 4 id. 37 Published by Via Sapientiae, 2017 1 DePaul Journal of Art, Technology & Intellectual Property Law, Vol. 28, Iss. 1 [2017], Art. 3 38 DEPAUL J. ART, TECH. & IP LAW [Vol. XXVIII:37 Social media platforms make it increasingly easier for individuals to directly communicate with businesses. People can follow their favorite artist, musicians, clothing companies, television stations and even the President of the United States. Some social media accounts are managed by employees, while others are managed by the celebrity themselves. This Comment proposes that with the increase of popularity of memes and its establishment as a form of communication and the possibility of infringement, that meme sharing has increased the need for a clear definition of commercial and non-commercial commercial speech. Commercial speech enjoys somewhat less First Amendment protection, and if a meme share is classified as commercial in nature it thereby increases the liability of businesses when they share a meme that was intended with a non-commercial purpose.' Classifying a meme share as commercial eliminates the possibility of the Fair Use doctrine as a defense. Part II of this Comment will summarize the defenses available for claims of copyright, right of publicity and trademark violations. Part III will address why the Fair Use defense is not enough for memes shares when there is no definitive test distinguishing commercial from noncommercial speech. Finally, this comment will address why meme sharing on social media has created a need for a definitive test to distinguish between commercial and noncommercial speech. H. BACKGROUND A. FairUse Doctrine A possible defense to meme sharing exists under the Fair Use Doctrine.6 However, if applicable, this defense only protects against copyright infringement, and a meme can be comprised of elements that possess several legal protections. Fair Use doesn't apply if the meme shared is determined to be commercial. Unfortunately, it is unclear when actions will be considered ' See Jordan v. Jewel Food Stores, Inc., 83 F. Supp. 3d 761 (N.D. Ill. 2015). 6 17 U.S.C. § 107 (2012). https://via.library.depaul.edu/jatip/vol28/iss1/3 2 Rocha: Y U No Let Me Share Memes?! - How Meme Culture Needs a Definitive 2017] Y2U NO LET ME SHARE MEMES?! 39 commercial versus mere social commentary. Does the Fair Use doctrine apply to humor by companies? The Fair Use Doctrine does not extend to actions that result in commercial gain. A business needs to worry about when their meme sharing will be considered commercial in nature. What is defined as commercial speech is subject to jurisdictional interpretation. The issues that this jurisdictional definition has created for business entities was seen by Nike in the California courts.' In Kasky v. Nike, Inc., the California Supreme Court created a three-part test to determine when an action is commercial speech or noncommercial speech.' The court determined that when categorizing a "particular statement as commercial or noncommercial speech requires consideration of three elements: the speaker, the intended audience, and the content of the message." 9 Under the test established in California, meme sharing is high risk for business entities. The first two elements of the test for establishing commercial speech are automatically satisfied when a meme is shared by a business entity, as the recipient is likely a consumer or potential consumer and the sharer is the business. 10 The Supreme Court dismissed its writ of certiorari of the Nike case in 2003 leaving the definition of commercial speech unclear.1 Financial Times considers memes as big business by reporting, "[a] raft of internet celebrities, such as Josh "The Fat Jew" Ostrovsky, have built mini-empires on finding and sharing the best [memes]."12 With the increased use of memes in our culture the need to clearly define permissible use is growing. ISee Kasky v. Nike, Inc., 27 Cal. 4th 939 (2002). 8 Id. at 960. 9Id. 10 Id. " Linda Greenhouse, The Supreme Court: Advertising; Nike FreeSpeech Case Is Unexpectedly Returned to Caifornia, NEW YORK TIMES(June 27, 2003), http://www.nytimes.com/2003/06/27/us/supreme-court-advertising-nike-free- speech-case-unexpectedly-returned-california.html. 12 Helen Lewis, Memes are a cultural issue not to be ducked, FINANCIAL TIMES (Sept. 20, 2015), https://www.ft.com/content/21eeO7a6-5el6-11 e5-9846- de406ccb37f2. Published by Via Sapientiae, 2017 3 DePaul Journal of Art, Technology & Intellectual Property Law, Vol. 28, Iss. 1 [2017], Art. 3 40 DEPAULI ART, TECH. &IPLAW [Vol. XXVIII:37 HI. ANALYSIS The inherent purpose of memes is communication - to be shared and re-shared by users around the world.1 3 Memes as a form of communication are quickly created and spread. 14 There seems to be a new trending meme every month." For companies to participate in this cultural norm creates a risk of litigation.' 6 Defenses to infringement are likely to fail if the speech is determined to be commercial in nature instead of noncommercial.17 When the test of what is commercial is left unclear, companies are left exposed when they engage in meme sharing.' A. Fair Use Doctrine is Not Enough for Memes An alleged infringer may argue its alleged copyright ' Phillip, Getty Demands License Paymentsfor Awkward Penguin, GETDIGITAL:DE (SEPT. 2, 2015) (English Translation) https://www.getdigital.de/blog/getty-images-wants-license-fees-for-the- awkward-penguin-meme/ A blog site received a letter from Getty images requiring the site to pay for use of the awkward penguin meme which it had posted on it blog site. The creators of this website, mocking Getty images for becoming angry when the site shared the letter it received from Getty requesting payment for the use of this meme, then created a derivative meme of the awkward penguin and noted that it was published for in the public domain and was free for all to use. The response of Getty images seeking payment in private and becoming angry that the blog site shared this letter requesting payment, would seem to suggest that it is taboo for creators of memes to request payment. 14 Nicola Brown, What is a Meme and What does This Obsession Say About the Future of Communication?, SKY-WARD (June 6, 2017), https://www.skyword.com/contentstandard/creativity/meme-obsession-say- future-communication/. 1s Id. 16 Chris Warren, 3 Rules for Brands Sharing Memes, ANA Mag. (Jan. 24, 2017) http://www.ana.net/magazines/show/id/ana-2017-january-legal-challenge-of- memes. I17 Id. ' Id. https://via.library.depaul.edu/jatip/vol28/iss1/3 4 Rocha: Y U No Let Me Share Memes?! - How Meme Culture Needs a Definitive 2017] Y0U NO LET ME SHARE MEMES?! 41 infringement is permitted by fair use.19 When applicable, the Fair Use doctrine permits individuals to use copyrighted material that might otherwise be considered infringement." Section 107 of the Copyright Act of 1976 provides: In determining whether the use made of a work in any particular case is a fair use the factors to.