We all remember the now-famous image of Sen. Bernie Sanders in a parka and cozy wool mittens during President Biden’s inauguration. The image of Sanders trying to stay warm became a viral sensation online, generating countless memes and blog posts. Sanders may have generated nearly as much news when he reportedly used the popularity of the image to generate almost $2 million over a five-day period for Vermont-based charities.
This raises the interesting yet sometimes complicated question of who or what can make money off a viral meme. “Meme” is a broad term that includes any image, video, text, or other online content that is usually humorous or light-hearted and shared rapidly with slight modifications.
In rushing to capitalize on the fleeting popularity of a viral meme, what are some legal risks that should be considered? Several legal issues could apply, including two major areas of law—copyright and right of publicity.
Get Rights and Permissions to Use the Meme First
The underlying content in a meme (e.g., the Sanders photograph) is generally protected by copyright law if the content is an original work of authorship, has a minimal level of creativity, and is fixed in a tangible form of expression.
If a person or entity wants to use the underlying content from a meme to generate revenue, even use of a modified version of such content risks a copyright infringement claim. The copyright owner may not care much about people using the copyrighted content to make and share memes through social media, but any effort to monetize the content is much more likely to be noticed.
It may be possible to argue in certain situations that the created meme has transformed the underlying content into a new standalone work, or that the use of the underlying content is a fair use and therefore not an infringement, but those defenses are far from guaranteed and must be assessed on a case-by-case basis.
In any event, using a popular meme’s content for financial benefit will not help a fair use defense, because an important factor in any fair use analysis is whether the applicable use would undermine the copyright owner’s ability to exploit the content at issue.
Therefore, before using any meme’s copyrighted content for revenue generating purposes, the safest course of action is to secure a license or permission from the copyright owner to avoid any risk of a third-party claim of copyright infringement.
Right of Publicity
Many states also allow for a private right of action when a person’s name, voice, likeness, or other recognizable characteristics are used for commercial or advertising purposes without consent or authorization. For example, if the subject of the meme’s content is a politician, celebrity, professional athlete, or other recognizable person who has not provided consent for the commercial use of such content, that person may have a right of publicity claim under applicable state law.
This right is different from copyright, so even if a permission or license from the copyright owner is secured for the underlying content, there may still be a need to get a permission or release from the person featured in the image.
How Can a Meme Help Advertise and Generate Revenue?
Once the legal risks in using a meme are addressed, the ability to monetize meme content is limited mostly by the creativity and capabilities of the applicable person, business, or organization. Placing licensed meme content on clothing or other merchandise is one simple way of generating revenue from the popularity of the meme, but there are other creative means to monetize popular online content depending on the situation and why the meme became viral.
For example, the Bernie Sanders fundraising campaign around the inauguration meme generated a significant amount of money through the sales of T-shirts, sweatshirts, and other merchandise on Sanders’ campaign website. There were no right of publicity concerns with Sanders using his own image, but it appears a collective agreement to use proceeds from the meme for charitable purposes may have helped facilitate the copyright licensing and other revenue generating activities.
In fact, the owner of rights to the original image that became the Bernie Sanders inauguration meme, Getty Images, has stated it plans to donate any proceeds it receives through its licensing of the image to a charitable organization as well.
Make the Benefit Outweigh the Potential Risk
Ultimately, it is important to remember a very popular meme that seems to be circulated by almost anyone online is not an open invitation to commercially exploit the underlying content without permission. The desire to capitalize on the success of a viral meme before its popularity wanes can encourage hasty decision-making, so the need to move quickly when trying to monetize memes is understandable.
Yet, before proceeding, legal clearance efforts need to take place. Among other steps, in most situations this should include securing: (1) licenses or permissions to use any applicable intellectual property in the underlying content; and (2) any necessary consents to use the subject’s name, image, and likeness.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Roger LaLonde is an attorney with Eckert Seamans Cherin & Mellott LLC in the Philadelphia office. His practice areas include intellectual property and data security & privacy.