Who owns that meme? The answer is all over the internet

Legally complicated

Argentine public law specialist and law professor Gustavo Arballo cites two sides to the ownership issue: the creator of the meme and those who share it.

In principle, he says, memes fall under the provisions of Argentine law 11.723 (which governs intellectual property), for the use of material already subject to proprietary rights (a company logo, for example). Reuse of such material “should have permission from the original rights holder. As this is not usually the case, [the owners] they can oppose its dissemination and take legal action,” if they see that their interests are being harmed, he says.

Arballo says “Think of a photo turned into a meme. This may be objectionable to the person depicted in terms of… their own image, or to [the rights owner of the original] photography.” Memes can use public domain works, such as images of national figures, or obtain prior permission to use, which precludes problems.

The author of the meme could register it, although ownership only applies to that particular version,

In such cases, Arballo says, “the author of the meme might even register it as their own work, although the ownership only applies to that particular version,” he says. However, the creator does not acquire any rights to the image used in the meme and cannot prevent other “memesters” from using it.

The second question concerns the use, which according to Arballo is “wild and natural” when a meme goes viral. Usage, he says, is impossible to monitor online because it is “scattered and massive” in scale. However, a creator with the foresight to register their meme “may have incentives (and reasons) to make claims in specific, documented instances of large-scale and profitable exploitation” of that work.

Free expression, brand rights and artificial intelligence

In 1936 (or 1935), Walter Benjamin wrote The work of art in the age of mechanical reproduction, a reflection on how cinema and radio were changing people’s experience and understanding of works of art. Art, he noted, was being democratized and made accessible, but it was also losing its authenticity and singularity. He was already prone to manipulation by the powers that be at the time, although then as now, the debates between property and personal rights versus creative freedom were not without complexity.

While some question whether we are truly ready to process the continuous innovations of our time, others insist that technological change has been a constant of civilization. Lawyer Mariano Municoy says that some countries have chosen to apply 19th century laws to regulate emerging realities, which means “we have to decide how those laws are enforceable and what their limits are. So there are issues that escape regulation “Memes are in principle subject to copyright laws, but only if created by people. What if AI starts generating memes?”

Argentina, he says, currently had no regulations on the use and modification of existing works for artistic, humorous or satirical purposes. Spain, by contrast, has introduced a pastiche law (2021) to regulate the online manipulation of images like memes do. The law allows elements of an artist’s work to be taken and modified or combined without the author’s permission, “provided there is no likelihood of confusion or damage to the original work or arrangements”.

Trademark rights

Mention another question: What if a person uses a company’s image to criticize it? This is already common on social media and in artwork, and says Municoy, “freedom of expression would take precedence in that case.” Andy Warhol’s Campbell Soup images and Antonio Caro’s 1977 Colombia-Coca Cola mocking consumerism were examples of this.

But brands have rights too, he says, as shown in the Herms vs. Rothschchild, where the French brand is taking artist Mason Rothschild to court, accusing him of stealing projects from him to create NFTs (or non-fungible tokens, which are digital assets). The artist lost, as the court found her use of Herms bag designs to be intentionally deceptive. Could such cases become precedents for memes?

In the case of websites and social media sites that circulate memes, they obviously have rules on the use of third-party content, which allow them to remove memes if threatened with legal action, says Municoy.

Are we all artists?

The meme, as a word, predates the internet. Coined by biologist Richard Dawkins, it refers to imitation and repetition as mechanisms for spreading a concept in a community. Toms Balmaceda, a young philosopher interested in how science and ideas interact, describes memes as “perfect vehicles for summarizing complex ideas and viewpoints, with the ability to convey diverse, even contradictory voices and perspectives.”

The value lies in user response, rather than its mere existence

Balmaceda says memes are digital content that is “transformed and jointly intervened” and are unlikely to constitute property. They are, he says, “the brainchild of the collective intelligence (or lack of intelligence) on the net,” coming in many forms or evolving, with different purposes.

The value of the meme, he observes, lies in the response of the users, rather than in its mere existence. “It is confirmed on the basis of its reinterpretation and reappropriation, whether through digital interventions, segmentation or repositioning in other chains of meaning,” says Balmaceda.

Viral memes like the This is Fine image about social fatigue are the ones that capture the mood of their time. Their originality lies in the inspiration of a moment.