From “Winter is Coming” to plays on the Harlem Shake to anything involving cats, memes and GIFs (short for Graphics Interchange Format) are an increasingly popular way in which cultural ideas are shared. A meme has been characterized as a “categorization of a cultural trend or truth, a unit for communicating and collectively sharing cultural ideas through words, symbols and pictures.” Social Fresh, How to Harness the Marketing Power of the Meme. Many memes, in popular culture, are easily recognizable—an image with large, bold text across the top and/or the bottom (a popular example is LOLcats). GIFs, on the other hand, are images similar to animations on loop, without sound. Both memes and GIFs can be and are created for any situation: to convey ideas, humour, and various forms of commentary.
Memes and GIFs are easily generated, modified and shared. Memes can be created using websites such as Imgur, Livememe, and Imgflip. GIFs are just as easily produced: Imgflip and GifSoup allow you to upload YouTube videos, add a caption, create a loop, and adjust its speed.
Memes and GIFs have exploded onto social media forums like Facebook and Reddit and have the potential to go viral—meaning they gain momentum and exposure through the process of Internet sharing. The most successful memes are those that catch on, are shared, changed, and reproduced.
The ubiquity of memes and GIFs raise legal issues concerning ownership and copyright in the reproduced images and videos. For example, do memes and GIFs constitute original works? Or are memes and GIFs infringements of the images and videos on which they are originally based? Further, how does one determine the authorship of a meme—is it the owner of the original image or video or the creator of the meme itself? What about subsequent modifications to memes and GIFs that go viral? Finally, are the everyday users of social media forums (who use Facebook and Reddit to participate in the sharing of memes and GIFs) at risk of copyright infringement?
Memes and GIFs are but one example of the growing use of the Internet and digital media as means to access, use, share and copy works. The Copyright Modernization Act (the Act) was passed in 2012 as an attempt to reform Canada’s copyright legislation. SC 2012, c 20; Government of Canada, Questions and Answers: The Copyright Modernization Act. The Act implements the rights and protections under the World Intellectual Property Organization (WIPO) Internet treaties and addresses various challenges and opportunities to copyright owners posed by the Internet and digital media. Government of Canada, Questions and Answers: The Copyright Modernization Act. Under the Act, copyrighted works can be incorporated into user-generated content as long as it is not for commercial gain and does not “have a substantial adverse effect” on the original material. Copyright Modernization Act, SC 2012, c 20, s. 29.21(1)(d); CBC News Canada, Copyright Changes: how they’ll affect users. Whether memes and GIFs constitute this type of user-generated content remains to be seen. Also, the meaning and scope of the provisions remain unclear: for example, what exactly is encompassed as user-generated work and what would constitute a substantial adverse impact?
While the Act better aligns Canada’s copyright legislation with the challenges posed by the digital era, whether or not the Act can keep up with ever-changing cultural trends remains to be seen. How legal issues of copyright may exist in cultural ideas such as memes and GIFs and their transmission will require more judicial consideration.
Daniel Daniele (daniel.daniele@nortonrosefulbright.com / +1 416 216 2317) is a lawyer in Norton Rose Fulbright Canada’s Intellectual Property Practice.
