A brief history of meme between culture and law

The meme is a fascinating cultural phenomenon that has found new life in the digital age. The concept of 'meme' was first introduced in 1976 by Richard Dawkins in his book 'The Selfish Gene.' Dawkins, an ethologist and evolutionary biologist, coined the term 'meme' to describe an idea or a behavioral element that spreads among people in a culture, in a way comparable to genetic transmission. His intent was to provide an analysis of the spread of ideas and cultural behaviors from an evolutionary perspective.

Initially, the concept of meme was used to describe cultural elements such as melodies, mannerisms, slogans, fashion, and even the art of building arches. With the advent and spread of the internet and social media, the term was adopted and adapted to refer to a new form of cultural communication: images, videos, phrases, and concepts that spread quickly online, often modified and adapted by various users in a viral manner.

The transformation of memes from simple jokes to complex tools of expression has been remarkable. Today, a meme can be as much a cat with a funny caption (as in the famous 'LOLcats') as an image capable of sharply capturing the essence of a feeling or socio-political moment. Another significant example is the 'Distracted Boyfriend' meme, which became famous for its ability to be adapted and reinterpreted in countless contexts, becoming a universal commentary on situations of distraction and temptation.

The intellectual property of a meme varies based on several factors, including the content of the meme itself and the legislation of the country in which it is used. The difference between U.S. and European laws provides an interesting framework for understanding these aspects.

United States: Fair Use and Copyright In the United States, the concept of 'fair use' is fundamental to understanding who holds the intellectual property of a meme. Fair use allows limited use of copyrighted materials without the permission of the rights holder, especially for purposes such as criticism, parody, teaching, research, or reporting. In this context, many memes can be considered fair use, especially if they are transformative, non-commercial, and do not reduce the value of the original work.

However, if a meme includes a copyrighted work (such as a photograph, drawing, music piece) and does not meet the fair use criteria, the original creator of the work holds the intellectual property rights and can theoretically take legal action for unauthorized use.

Europe: Copyright Law and Exceptions In Europe, copyright laws are similar but with some key differences. Although there is a notion similar to fair use, known as 'exceptions to copyright,' this is generally more limited. Exceptions are specifically defined by each member state of the European Union and may include use for parody, caricature, pastiche, or criticism.

In both contexts, if a meme is an original creation of the user (for example, a completely new image or text), then the creator of the meme may hold the intellectual property rights on that creation. However, given the viral and often anonymous nature of memes, enforcing such rights can be complicated.

With the popularity of memes, complex legal issues emerge. The case of 'Socially Awkward Penguin' is emblematic: Getty Images, owner of the original image used in the meme, took legal action against websites using it without authorization. This episode highlights the delicate balance between creating viral content and respecting copyright.

Similarly, the cases of 'Nyan Cat' and 'Keyboard Cat' have highlighted how memes can also be subject to legal protection. Their creators indeed sued Warner Bros. and 5th Cell Media for unauthorized use of their creations in the video game 'Scribblenauts,' signaling that even seemingly simple and viral creations can have value and legal protection.

Finally, the case of 'Pepe the Frog' illustrates another important aspect: the character's creator, Matt Furie, had to take legal action to counter the unauthorized and often distorted use of his character. This highlights how meme creators may need to defend not only their intellectual property rights but also the integrity and original intent of their works.

In conclusion, memes are not just viral phenomena for entertainment but elements that can influence culture and society. While they offer a unique and powerful way to communicate complex ideas and common feelings, they also raise important legal issues related to intellectual property. These cases highlight the need for a balance between freedom of expression and respect for the rights of authors in an increasingly digital and connected world