Memes are hilarious, aren’t they? Even Joe Biden’s social media team was all over the ‘Dark Brandon’ meme – well, at least before his campaign itself went dark.
Nowadays, those young’uns love their memes, and with 41 million GenZ eligible to vote in 2024, you gotta do what you gotta do. And political campaigns are not far behind.
After all, the days of being afraid of memes are over. It is no longer 2004 when one badly squeaked ‘Yeah!’ goes viral and ends your presidential bid.
(Which is what happened to poor Howard Dean. It was one of the first ‘viral’ political memes that crossed the blood-brain barrier from dark corners of the internet into mainstream consciousness – and it was a video, so that’s a double achievement.)
It has been 20 years since then. The once career-ending ‘meme’ has been packaged, commodified, and adopted by enough uncool grandparents that it no longer has the power to smite the unwary into ashes.
At best, they’ll laugh at you for a few months. What’s a meme when we regularly find ourselves on the brink of another biblical plague or World War 3?
But before we are all consumed by the bright flash of a nuclear bomb, the courts will still run. And that is where the problem begins for political campaigns.
By its very nature, a meme is a random digital creation in any form – image, video, or sound. And as long as it remains some random image, that’s fine. Post all the snarky comments you want and send them to all your voters, making them ‘lol’ at your foolish opponent.
However—and I stress this is a big however—some of those images are not quite so random.
You see, such is the nature of the world and American copyright laws that when some people realize that their likeness (or that of a pet, or a child, or some such) is now a viral meme, they instantly jog over to the nearest patent office and get a trademark for it.
To blend an ancient ad with all this GenZ talk and make a meme – “And you wouldn’t steal a ‘meme,’ would you?”
Most people will answer, “Yes, I can.” But a political campaign is not a person and has all those donation funds that can be claimed if someone has the legal right to do so—and some do.
So, in the latest trending news, In 2020, white nationalist (no, really) and US Congressman Steve King used the ‘Success Kid’ meme as an ad for campaign funds. Specifically, he asked for some cash to “make sure the memes keep flowing and the Lefties stay triggered.”
The person who was actually triggered was the owner of that meme—Laney Griner. She took this picture of her son in 2007 and licensed it out when big corporations or campaigns wanted to use it.
Not only did she have the legal right to the image, but she also really, really didn’t want the meme associated with a white nationalist or Republican. Her lawyers originally asked for the post to be deleted, a public apology to be given, and any funds raised through the meme to be refunded.
The legal letter also expressed dismay that someone might imagine the meme was in any way endorsing King’s campaign.
King’s campaign ignored her, and the matter went to court. An Iowa jury found in her favor and awarded her the minimum $750. The King’s campaign appealed, and finally, last month, the 8th US Circuit Court of Appeals upheld the verdict.
There are two points to remember from this since this has the potential to be a major precedent:
- Point one: Memes don’t lose their copyright simply because they are popular.
- Point two: Just because a meme is used billions of times non-commercially doesn’t make it free to use, even as ‘criticism and commentary’ for your political campaign.
So, if you are running a political campaign, resist the urge to use a random meme—especially if it is a popular character or IP—without enquiring about licensing first.
Also, it helps to remember that trademark owners will take the trouble of suing if they disagree with your politics.
Before posting, take legal advice (or even a quick Google search), no matter how ‘trending’ the image may be. This is a small step to ensure you don’t end up as our trending news story next month.
All the best, and may the Force be With You!
