Podcast

Ethan

Welcome to the social media lawcast. I am your host social media attorney Ethan wall with me is my friend and co-host Sean DePasaquali.

Shawn

Hello I am him? yeah.

Ethan

Yeah, but Sean we're not alone today. It's not just me and you we actually have yes very special guest. We were talking before the episode and we've been friends now for about 20 years

Jaime Vining

Um, it is with ah.

Ethan

We could go into an entire podcast episode about the background of the story but I want to introduce you to my grade friend Jamie no no wait

Shawn

Wait but wait but wait Wi but wait wait.

Jaime Vining

Um.

Jaime Vining

Um, like I feel like a Disney princess.

Ethan

Do we have the license for that awesome anything. But okay, yeah, yes, yeah, no please ah withff us is my great friend Jamie Vining of Friedland vining.

Shawn

Um, yeah, we yeah we we do. We do actually all right now you get introduced the guest by name though you missed the cue do I have to play it again. Ethan.

Jaime Vining

Um.

Jaime Vining

Um.

Ethan

Intellectual property law firm in South Florida soon to also be in Colorado as well. Jamie is a trademark law professor at the university of Miami she is a board certified intellectual property attorney meeting. She was a legit certified expert in this area.

Shawn

Who.

Ethan

Only we've been friends for 20 years we've been practicing law together for about 1015 years um Jamie is my goto person for all things intellectual property and trademarks I'm so happy to have her as a friend and so happy for you to be here on the show. Hello Jamie.

Jaime Vining

I'm so excited to be here I had my own entrance Song I Love it. So excited.

Shawn

I I am so excited by the introduction you gave to her and like all of her credits because now we get to reveal that we have brought this very qualified incredibly skilled woman to talk about the stupidest thing.

Ethan

Um, yeah.

Jaime Vining

Are.

Shawn

And we could possibly have come up with to waste an hour of her precious time on this planet to talk about memes. They are.

Jaime Vining

Memes are very important. You would be surprised. We get a lot of questions I mean every day about from people that have questions about beams like can I share this can I post it is it mine who owns it if it's gone viral who has the rights to it.

Shawn

Yes, I'm sure.

Jaime Vining

So I mean it's confusing like perfect.

Shawn

Amazing. We're going to ask you all of those questions. Basically um so okay, let's start with like what are memes right? What? what? What is a mean where does it start So It's It's an internet thing. It starts on the internet. It starts in chat forms primarily. Right? And it's people and mean the the definition of it is very fluid and like but basically it's a word that was made up to describe a picture um ah or an image with text over it that Conveys some type of message or emotion or thought or. Universal truth as it were um and initially this was just like a fun thing that people were doing as um I would say you know chat Forum Shorthand right? Why explain a whole thing when you can find a picture from a Tv show that everybody is familiar with.

Jaime Vining

Are.

Shawn

Throw your text on top of it. It's a much easily more shareable thing as a result these memes started to proliferate the internet they left their chat forms and Reddit and places like this and literally started to make their way everywhere. You started to see them. You know on social media people would.

Jaime Vining

Right.

Shawn

Find something funny in one of these forums and share it on a social media platform and then it sort of morphed into becoming its own language right? it like over that time memes became their own language people Now. Could you mean you can communicate in Memes. There has become so many of them. Um, and then of course as all things do ah capitalism got involved because nothing can be enjoyed um without being capitalized on and so and this is probably where you come in where now businesses and companies and corporations. Want to.

Jaime Vining

Yes.

Shawn

You know, use means because this is a new language that young people are speaking and so they go hey we want to communicate with you in your language now. How do we participate in the fun. Not realizing that like once you start to participate in the fun corporation. It's no longer fun and now you're just like lecturing us in a language we created. But.

Jaime Vining

Um, right is what happened to social media. It was a thing that we all connected on right when college students and then now every business has a Facebook page and now it's not cool to be on right.

Shawn

Regardless, this is where we are at now right? So it's what.

Shawn

Yes, it's what happens to everything I mean this is this is you know that's a bigger discussion about how does capitalism ruin everything it touches but we don't have to get into that big because because I think there's a lot to cover here because the way Lyn and I approach this show is he knows stuff and i'm.

Jaime Vining

Um.

Shawn

Dumb and just like ask questions about things and I go like well what are those for though. So let's start with like early memes right? because a lot of early memes actually were just like random pictures of random people so and let's start there because there's a whole bunch of.

Jaime Vining

Right.

Jaime Vining

Um, yeah.

Jaime Vining

So I.

Shawn

Questions there right? like the the the the girl with the house on fire behind her the I mean there's so many of them. So how how does that work from a legal perspective and and and I guess let's start with like how did it start and where are we at now.

Jaime Vining

Um, yeah.

Jaime Vining

Okay, so in order to talk about how memes originated or who owns rights to memes we have to we have to backtrack a second right? So when we talk about memes the most common intellectual property right? That's implicated is copyright. Because copyright protects photographs it protects original works of art of authorship right? So art music, architectural drawings and memes fall within that category of of artistic works right? So someone takes a photo of their kid. Um, one of my favorite is the the success kid you know the one. That's yes, that kid right? There's actually litigation over that photograph. Um, we'll we'll come back to that but the copyright protects those original images and the copyright is owned by the photographer. The person who takes the photo.

Shawn

Um, yes, yeah.

Shawn

Interesting. Yeah. Okay.

Jaime Vining

And then in theory the way that those photographs are those photographs are uploaded online right by the photographer or someone who has access to the to the photos and then they're shared. They go viral right? Ah there and people. Put text on top of them. They share them. They animate them. Whatever right? and then that has become now a shorthand for how he communicates basically the only way my 11 year old communicates send me.

Ethan

It is also for forty year olds on dating sites I can tell you previously before before my currentfriend girlfriend I'd match with somebody on bumble and win it to speak first and it's like here's a meme and I'm like okay. That's how we're doing it. Okay, here's a mean back like when can we be human beings just use words. But yes from 11 year olds yeah so

Jaime Vining

Um, no, we past that we don't We don't use words we use photos with funny sayings on them now. Um right? And also it's shorthand it's better than it's become the new slang right? so.

Shawn

Yes, because we've lost all nuance so you know yeah so in that scenario What? what? like you know, if if the photographer owns the rights then theoretically could the photographer of the success kit image. Have said, don't ever I don't want this used anywhere anymore and anyone that does use it. It's my photo and I'm going to go after them and and have stopped memes in their track before they got started.

Jaime Vining

So like every lawyer answer right? The answer is depends right? right? That's like you're you're just I'm sure you've heard that a lot right? So depending on how the meme is used. It could be considered to be copyright infringement.

Shawn

Um, yeah, um.

Jaime Vining

Right? We're infringing on the photographers right? It's in their copyright in the photograph if the photograph is merely shared online. Um, it's meant to convey a message like you said it's become Shorthand it's slang then it's not it would fall within the very.

Shawn

No.

Jaime Vining

Very gray area of copyright law that is commonly misused but also known as fair use right? Um, right? And what is fair use. No one really knows it varies by court by state by right by factual matter like it just.

Ethan

And.

Jaime Vining

There's 4 factors and they're never applied in the same way which leaves a lot of ambiguity right? so.

Ethan

See on I told you because he tried to drill me down whether something was fair use and I said it was amorphous and he said I gave a cop out answer now you realize my cop on is consistent with everybody else.

Shawn

Guests.

Jaime Vining

He's not wrong and anyone who tells you otherwise is lying because no one knows you know.

Shawn

Well, you know it well and that's it. It's interesting I've had like personal experience with fair use in 2 very different scenarios like 1 was in film and television and getting clearance to put something in a scene right.

Jaime Vining

Um, okay.

Shawn

Ah, thing that exists in the world. Can it be there if it exists but depending on what's on it no is the answer and then also in the context of I worked for online ah news publications entertainment publications and there's constantly the question of what image can we use.

Jaime Vining

Um, right? so.

Jaime Vining

1

Jaime Vining

Um, right.

Shawn

Can it be from a movie can it but you know where can it be from Well it can't be from a um paparazzi photographer but it can be from universals Official photographer. So it tracks and is hilarious to hear 2 lawyers say there is no real answer because that's basically the answer you get. As an employee in either of those 2 scenarios I've just described when you go. But why? Yeah yeah, yeah.

Ethan

Um, yeah, because fair use is unfair. It's unfair to every body.

Jaime Vining

That is a really good way to put it. It is It's because there's no clear answer. They give you four factors. They say any one of these factors can be controlling or determinative right? So you don't know which one matters the most and depending on which judge you have in which state in which district you might get.

Shawn

Who okay.

Jaime Vining

Totally different answer and so it's it's not cut and dry. It's not. It's not as easy as as layman like to think that it is you know like I had a client come to me the other day and they said I got this photo from the public domain. What what does I mean? well it was.

Shawn

Um, yes.

Shawn

What is Avi.

Jaime Vining

Was on it was publicly on a website. It was publicly on a domain and so that's a public domain and I get to use it right? No, that's no, that's hot.

Shawn

No, no, no come on That's Wow people are in a scary place. So I think a more a more definitive line though from my my layman understanding of the way it works is is the.

Ethan

Called.

Shawn

The other side of of what you've just described which is if you're going to make money in any way shape or form or profit off of it in any way shape or form Even insularily you can't use it anymore without getting permission.

Jaime Vining

That's that's the success kid lawsuit so that's from a couple years ago but yes you were absolutely right? because one of the factors when a court looks to see whether a use is considered fair or unfair is whether it's for what we call a commercial purpose.

Shawn

Okay.

Shawn

Um, other.

Jaime Vining

Which is exactly what you described is someone making money off this image and there's a lot of issues that come along with using someone's image like the the photo of the success kit for example for a commercial purpose and one of those of course is copyright Infringement If you're going to use someone's photograph that they took for a commercial purpose. It's. Unlikely to be considered fair because it's not for educational purposes or entertainment or newsworthiness right? You're using it to make money and that's unfair to the person in the photo or the person who took the photo so in the success kid case someone? ah.

Shawn

Um, Ripe boom.

Jaime Vining

Politician actually used the photograph as part of his reelection campaign trying to you know, drum up donors and the photographer who happened to be the mother of the kid of the success kid sued and they settled out of court. So no one really knows what happened there. But um.

Shawn

Yeah, of course.

Ethan

Question on that case in addition and I and I'm not trying to put you on the spot. So if you don't know I will dig it up while you and Sean keep the discussion going. But in addition to legend copyright infringement did they also allege like a misappropriation of likeness.

Shawn

Um, the.

Jaime Vining

But it's initial.

Shawn

The.

Jaime Vining

Yes, yes, that's so that's the other kind of bundle of rights that come along with memes which is right? Someone's ah, right of publicity is what we call it right? That's that's.

Shawn

Okay, explain explain that a little more So how does that play into like we'll use the success kid in in in this instance like does that give him any like what rights does that give the actual boy in the photo.

Jaime Vining

He's easy to use.

Jaime Vining

So depending on what state you're in because this is not. There's no federal right of publicity like there's a federal copyright act. But there's no federal right of publicity. So not every state guarantees these rights some of them have.

Shawn

Okay.

Shawn

Okay.

Jaime Vining

Different versions like violation ah or invasion of privacy right? So they're like related rights but I would say over half of the states in the us have some statue that protects against violations of right of publicity and publicity what that what that entails is that you have a right to commercialize your own.

Shawn

Are.

Jaime Vining

Name likeness your face your photographs. Ah your image in some states they protect even broader you have even broader rights like they'll protect um gestures like Vana white and her you know stuff like that right anything that would be like associated with your.

Shawn

Yes I asked.

Ethan

Yeah, and the clearest example of this might be. There might be a picture of Michael Jordan in the public domain meaning there might be some website out there that has a license to be able to have this photo and to give this permission to other people.

Jaime Vining

Ah, persona your your public persona.

Shawn

Um, yeah.

Ethan

And so it may not be copyright infringement to use a photograph of Michael Jordan on your sneakers Instagram account. However, if you use Michael Jordan to promote those sneakers in some sort of ah a fashion. Then Michael Jordan you know I mean you may not be violating his copyright but you're violating his his right to publicity his right to monetize being a spokesperson for that brand.

Shawn

And not not to take us too far off track but in that in that specific case would it come down to wording like if I have a shoe company and I use this public picture of Michael Jordan and I go like Michael Jordan you know like shoes like. Is that okay versus like Michael Jordan says he loves my shoes and you should buy them is and ah.

Jaime Vining

I don't even think it matters in either one of those cases because the fact that you use his face. You use a photo of him as part of your advertising to commercialize your own footwear. You are violating his right of publicity now what you've raised is a whole separate issue. Which celebrities have increased protections so they have protections against false endorsement and so the examples you gave where Michael Jordan likes my shoes. That's even 1 step further now we're not just violating his publicity but we're also suggesting kind of a.

Shawn

Are ah.

Shawn

Um, sure. Okay, so okay, so yeah, go ahead? No no, no go for it I You don't even have to I why.

Jaime Vining

Association or like an affiliation between you your company and Michael Jordan and so he would have an additional claim on top of that. Um.

Ethan

So let me throw up I will arm wrestle you to see who goes next? no just reach through and grab my head. We're doing this? Okay, okay so all right? So here's the make it.

Jaime Vining

Okay.

Shawn

Getting weirdly antagonist like you don't have to. It's fine man you go right? buddy We're good.

Jaime Vining

Um, we not.

Ethan

Thank you? Oh so? Okay, um, this there's the sad. There's the sad Jordan meme that we've seen before Michael Jordan crying okay so I'm gonna give you 2 different scenarios one that seems.

Shawn

Yeah, you won um.

Jaime Vining

Um, of all of yes, yes.

Ethan

Obviously um, problematic and one that might have a little bit more question mark let's say that there is a sporting goods company that's out there. Maybe they sell sneakers. Maybe they sell basketballs. Maybe they just sell ah a bunch of types of things and um, 1 example might be on Michael Jordan's okay, 1 example might be.

Jaime Vining

Time. Yeah.

Ethan

Pretty clear hey we have this sale on shoes. Don't spend more money elsewhere and be sad and now they're using Michael Jordan's sad crying meme but clearly in example, a they are using it in connection with promoting a specific product or service or promoting you know their company. That's example, a and I think we can all agree.

Jaime Vining

Friend right.

Ethan

Sounds like it's not okay for all the reasons that we have discussed now same scenario the sporting good company has um, an account and on Michael Jordan's birthday. They say you know happy birthday to the goat sad. You're not still playing. Basketball and now use the Meme. So it's on the business account but it's not in connection with a specific product or service. It's something that's kind of newsworthy it says birthday and they kind of leave it at that. Um, how does your legal radar feel about the second scenario.

Shawn

Who.

Jaime Vining

So I usually tell clients let's stay away from celebrities because celebrities like I said they generally have increased protection but in this scenario you're right? It would be for kind of a newsworthy purpose right? They are wishing him a happy birthday. They're not selling a direct product. So I think it's a defensible position but I also think I think that using ah I think just generally that a a company that uses social media. No matter what they put on their social media. They're using it to promote their business They're not. This is not you and me in our college photos right? This is you know they're they're doing it for business publicity promotion purposes that was a lot of peas. Um and and you know this because right because the trademark office will accept screenshots from their social media accounts like from Instagram or Facebook.

Shawn

Right.

Jaime Vining

As showing use in Commerce for publicity or promotion purposes. So you know I think I personally would avoid using celebrities I would caution against using celebrity. Even it isn't yeah.

Shawn

Mean.

Shawn

So how how then do companies leverage memes without infringing on copyright. What is the safe way to do it to to advertise via meme.

Jaime Vining

Oh. Well there's there's the 1 sure way we don't like this answer but the one's your way is to ask get consent, get a license right? um, get permission because you you know they always say like it's better to like ask for forgiveness.

Shawn

Hundred and yes.

Jaime Vining

Instead of permission. No, that's not true in our industry. Don't do that Really not true here like you can't ask for forgiveness after you've been sued I mean I guess you can but like it's it's not gonna get you out of the lawsuit. So right I'm sorry.

Shawn

It's not true. It's not true anywhere. Listen it's not true anywhere anywhere.

Ethan

Um.

Ethan

You know Shitny Legal defense put it that way right.

Shawn

Then.

Jaime Vining

Sad face Michael Jordan is not going to get you out of the litigation if you could su so so you know ask? um which is the same for any photograph that any business uses um, you know whether it's a meme or not if you find something funny online.

Shawn

And think.

Jaime Vining

That doesn't mean you have a right to it just because you can right? click and steal it from Google images right? That's not actually the public domain. Um so I mean the the most prudent response is always to ask in the event that you can't ask.

Shawn

Right? right.

Jaime Vining

Go out have one of your employees or you yourself right? You're the business owner you yourself take the photograph yourself have the rights to it yourself because you you took it or you commissioned it or you licensed it from someone right? So get the permission or own it outright.

Shawn

Ah.

Shawn

Right.

Jaime Vining

But just sharing it online. You run the risk of someone objecting and saying you've infringe my copy.

Shawn

So that leads me to my next question though which is in the scenario where the corporation goes out and creates the meme are those memes differently protected is there more.

Jaime Vining

Think differently I could.

Shawn

Like is there more protection because a corporation now made this and owns it and so like if I try to use that meme and like do something fun with it. The corporations gonna come after me because they're like well we made interesting. Yeah.

Jaime Vining

They could they they for the same reason right? because then they would own it. Um I mean it's definitely for if I'm you know Mcdonald's and I have. 1 of my employees take a photograph and that's what I use and then that goes viral and burger king picks it up me mcdonald's I'm in a much better position right? than if I just adopted it online and now a competitor also adopted it online neither one of us has a right to use it.

Shawn

Um, got it.

Ethan

Yeah, and I think a lot of this comes down to what the meme is as well. The reason that people like sharing memes is it's usually already viral by the time the brand wants to use it. So yeah I think if you've got like a radar right with.

Shawn

Um, yeah.

Jaime Vining

And you know we're all at risk.

Shawn

Yes.

Ethan

Completely safe from a legal perspective and things that are likely to get people to engage are going to be completely different. A corporation can go out in their office take a photograph of their own employee who gives consent they could slap some text on it and they can share it and guess what that corporation's likely going to own that 100% outright

Jaime Vining

Yep.

Ethan

The other hand unless it's really funny or clever. People aren't going to want to engage with it. They're not going to care on the other end of the spectrum now now like moving the needle a little bit a corporation takes a screenshot of Spongebob Squarep pants puts their own text on it and publishes it. They've now created their own meme.

Jaime Vining

Um, right.

Ethan

But they use somebody else's copyrighted material which creates some degree of risk then there's the third scenario where a corporation just finds a meme that's already floating around online shares it on their own profile with their own language and now they didn't create it. They didn't have any rights to it and now they're probably at the greatest. Amount of risk that's out there. Um.

Jaime Vining

Um I agree there's like the spectrum of you know risk.

Shawn

Well and then you can complicate all of this right? because what we didn't really get to is how like the word meme has sort of evolved because it's not just pictures anymore right? and ah now Meme is sort of Shorthand for you know all the things we've discussed but it is really now extended into.

Jaime Vining

Yep.

Jaime Vining

Yes.

Shawn

Tiktok and with the introduction of Tiktok came the introduction of memes with music which opened up a whole new can of nightmares for corporations and businesses because now you have and I and I want to get into a little bit of of how this works.

Jaime Vining

Whole.

Shawn

From from the 2 of you guys perspective so Tiktok obviously is licensing the ability to even have these songs on their platform. So someone's making money there whether it's the company or the artist. Whatever but someone's getting paid to have these songs exist.

Jaime Vining

Um, right right.

Jaime Vining

Right.

Shawn

Now me as a user I can use any of the songs in their library to make a video and that and I'm like borrowing it basically from the borrower is that kind of how that looks legally.

Jaime Vining

Sure I.

Jaime Vining

Kind of youre you you the the music's been licensed and Tiktok is essentially offering you a sub licenseence right to use the music for videos on Tiktok. Not elsewhere.

Shawn

Right.

Shawn

Right? anywhere else right? Okay, so now if I do that and then I make a really funny video and it's great and then a company wants to make ah an advertising video using that same song on Tiktok.

Jaime Vining

Right.

Jaime Vining

Um, yeah, yeah, they want to use your video that you created with the same music.

Shawn

Because that's where it is. They cannot is that correct. They want to you make their video with the same music. Can they use that music.

Jaime Vining

So it depends on what the license from I know it depends again. Yeah what the music with the license from Tiktok says tech I without looking at it. My guess is that the license is for non-commercial uses and that if.

Shawn

Right.

Jaime Vining

This business now makes a commercial use of the music even though it's on Tiktok then they would be violating the sub licensee that they have from Tiktok. Um, that's without looking at it. But.

Shawn

But then but then how do Tiktok creators make money on tiktok using those licensed like is it just like a gray area and no one cares or.

Jaime Vining

It's like yeah like on Youtube righty then it's like you know that's how they through views and clicks then they are earning their earning. Yeah.

Ethan

So yeah, you've you've brought up a unique situation which is the difference between personal accounts creators and businesses. So my understanding is that tiktoks.

Shawn

Um.

Shawn

And corporations. Okay.

Jaime Vining

Right.

Ethan

License for you to be able to use music is as exactly as Jamie described for non-commercial use meaning if Ethan Wall has a personal account and I want to do a silly little dance and used bruno mars song I can do that. But now if it's the social media law firm.

Shawn

Um, right right.

Ethan

And I as Ethan as a social media attorney wants to create a silly little dance video and use Bruno Mars I don't think that Tiktok is going to allow me to use the Bruno Mars song because I have a business account and so they've tried to separate the commercial use between personal which is okay and business which is not.

Shawn

Um.

Jaime Vining

Right.

Shawn

Interesting.

Ethan

But you're identifying is a strange gray area which are creators because generally speaking creators are personal accounts that are used to engage with other people and build a big following so they have the ability to use personal music because they're a personal account. But.

Shawn

The influencer. Yeah.

Jaime Vining

Right.

Jaime Vining

Right.

Ethan

They are making money either on a becoming so popular that Tiktok or Youtube is paying them because people are spending more time on Tiktok watching their videos so they get a cut or being they're partnering with brands and sharing the content on their own page and so a creator let's say it's me.

Jaime Vining

Right.

Ethan

Is doing a silly bruno mars type dance. But now I'm holding the tell you know and ah and it and it's like Chi it up shake it up. But.

Jaime Vining

Um, this dance just not really great I need to see this dance now with you know? Oh oh, it's coming. It's coming everywhere.

Shawn

Yeah, you know we we got to shoot this dance after this episode is done Ethan now you need to dance to a Bruno Mars he's yeah no idea running away. It's just a smoke outline of Ethan left for the remainder of the podcast.

Ethan

Know Yeah, not. But.

Jaime Vining

And I was like please bring me to tell it that sounds wonderful.

Ethan

Yeah, so I think that's the problem is that the creators fit into this hybrid situation and and I would assume that if at the end of the day. The creator is making a bunch of money partnering with a brand to promote their product and using copyrighted music.

Shawn

Okay.

Ethan

And Bruno Mars this example wanted to go after the brand or the creator he or whoever owns that copyright probably has a valid legal claim because they're using it for a commercial purpose even if it's on a personal slash creator type of an account and I think the problem is people are just getting away with it left and right. Because Bruno Mars the record label doesn't want to be so hiring somebody to watch Tiktok videos all day and do it but eventually I think what's going to happen with music is just like with people stealing copyrighted music on on Napster or things like that.

Jaime Vining

Um, all day long right.

Shawn

Um, yeah, oh.

Ethan

The record companies first went off to the individuals Now they're going after the companies themselves the ones with the bigger pockets of the social media sites. So I think that's likely if if.

Shawn

The.

Ethan

If the brands feel or the music owners or rights owners feel that people are abusing their music using Tiktok and Tiktok isn't taking reasonable action. They're going to go after the tiktoks of the world.

Jaime Vining

Yeah I agree with you.

Shawn

Well so that that takes us into our our sort of last kind of area which is is regulation and I want to start with do either 1 of you guys are are either 1 of you familiar with and it's okay, if you're not um. Article 13 which is something that the the Eu is doing that is effectively being called the meme killer. Okay so I'm gonna read a little bit from this wired article just to give you some background. Um.

Jaime Vining

Um, oh no tell us.

Shawn

And ah because I think this is really interesting. So the the subhead is article 13 of Eu's new copyright directive has sparked huge controversy online with Youtube campaigning strongly against the proposal. Um, and so sort of what they explain is that um.

Jaime Vining

So.

Shawn

The european union's directive on copyright in digital single market which is what it's it's called requires Youtube Facebook and Twitter to now take more responsibility for copyrighted material being shared legally on their platforms. Um, correct.

Jaime Vining

This is why Youtube was opposing this.

Shawn

Correct so on April Fifteenth Twenty Nineteen ah the political body composed of 28 governments but but but but but but but voted ah to to sort of implement this um and ah in polish court. This was brought up. In a case against article 13 um, where they're saying that it fuels censorship and threatens freedom of expression is the argument being used against article 13 going into into use. Um, so unless the polish court decides to to to switch this.

Jaime Vining

Interesting.

Shawn

Um, according to this article individual member states will have 2 years to turn the new rules into their own new national law. So the way this works is um, the the the directive is designed to limit how copyrighted content can be shared on online platforms. Ah, the Eu directives form are a form of legislation that's set an objective for member states to achieve right? So in this case, it would be that online platforms would be required to filter or remove any copy written material from their websites.

Jaime Vining

Plus.

Shawn

It's this article that people think could be interpreted as as recrying platforms to ban Memes Essentially so what do you? What? what? do you think? Ah, yeah, ah so far where where does this does this feel like something that could happen here.

Jaime Vining

No I can see that.

Jaime Vining

Um, I mean even don't you think it it kind of like runs really contrary to the Dmca which is the millennium copyright act which provides safe harbor right for these youtubes and tiktoks and other sites right.

Ethan

Um, yeah.

Jaime Vining

Ah, yeah.

Ethan

Exactly so yes, um, that's exactly what this sounds like and it kind of ties in the last conversation which is that ultimately they're going after the the big companies. The internet service providers themselves as opposed to the individual users and so. As Jamie said the digital millennium copyright act gives a safe harbor provision to companies like Youtube or Facebook that says you're not going to be liable for the copyright infringement that occurs on your platform so long as you follow certain provisions. Which is giving people the opportunity to file reports reasonably taking things down allowing people to respond to these takedown reports etc saying if you have a reasonable process and you follow that process. You're not going to be held liable for what people do on your site now. What I think is happening in the eu is that whether it is.

Jaime Vining

Right.

Ethan

Eu is against big tech or it is that E U is championing individual privacy rights. They are creating much more stricter laws than in the us to protect people's privacy rights on the internet and that's why you see things like gdpr.

Shawn

Whom.

Ethan

Ah, which like requires people who are holding data from eu residents to have a process to remove that data from their systems by using their requests and so I think this is 1 more step that the Eu is trying to take to put stricter regulations on the asps.

Jaime Vining

Um, was all.

Shawn

Um, yeah.

Ethan

Internet Service providers the Youtubes the tiktoks of the world to stop this type of infringement from occurring and I don't think the point of the law is probably to stop. People's memes. It's I think to stop people's uses of photos movies, music and protecting other people's rights.

Jaime Vining

So now.

Ethan

But this could extend to other types of copyrighted materials and that's probably why people are up and arms in the first place as they're saying this law is overbroad vague too difficult or expensive for us to be able to actually monitor and enforce.

Jaime Vining

I mean it also really goes in direct conflict with the first amendment because not every use of memes like we've been talking about is commercial. Not every use is ah you know prohibited by law. There's plenty of use I mean you send.

Shawn

And here.

Jaime Vining

A meme we send one to each other right that is not copyright infringement. We argue that's transformative that it's satirical. You know like there's all these other reasons of how we we can use memes but under that article 13 it would sort of diminish all of that and.

Shawn

Well, it would only apply though to the platforms in question. So like the way the article is is is written. It's specifically saying on these large platforms such as Youtube where where the whole point is they're generating money off of views. There needs to be ah more stringent protection against those things and and and more stringent. Um ah, monitoring for compensation as well for the artists that are being infringed against. But it sounds like neither one of you thinks that's likely to be something that America could adapt um or would even really be interested in adapting.

Jaime Vining

Um, I mean use is you know.

Ethan

Well I right? California may here's why okay California so one of the things that we we do with the social right? California's crazy but California's California is super super.

Shawn

Um, yeah, sure the best date.

Ethan

Ah, individual right-friendly as opposed to other states are super business- friendly and so one of the things we do with the social media law firm is we write the terms and conditions for people's websites and privacy policies and usually we could write a privacy policy that covers every different State's laws but we have to include a specific provision.

Shawn

Yes.

Ethan

To comply with California's consumer protection act because they add more protections than other states and they're more similar to what's happening in the eu and so I could see a state like California adopting something of this nature. Perhaps an extension.

Shawn

Who.

Ethan

And I think that by introducing these bills into the system. We're going to get both unreasonable objections because people just don't want change and don't want to put that cost in but we might get reasonable objections such as Jamie's point use of copyrighted material can and is often fair use. So it's unfair.

Shawn

And.

Ethan

And I think another question that always comes up and it and it dovetails into maybe a good last topic of how people can protect themselves is whether this is for registered copyrights or common law copyrights as well. And so oftentimes people ask me hey I'm a creator I've got photos I've got videos I've got music someone is stealing. It. What can I do about it. My question is always to them. Do you have a registered copyright because if so there's more that we can do about it and so. That might be the good segue to Jamie which is now people who are listening to this episode are likely small businesses influencers creators photographers musicians they're creating content and sometimes it gets turned into memes or it gets used by other people and they say what can I do about it. What.

Jaime Vining

Right.

Shawn

Yeah, yeah.

Ethan

But tips do you have and I didn't use the word legal advice but like what what tips might you have for creators influencers content owners to better protect themselves to be proactive rather than reactive when their content goes viral.

Shawn

And and like has there ever been to your knowledge. A successful example of someone like stopping a meme from starting you know or forming.

Jaime Vining

Well and will okay so we'll Sean I get your your first so stomping a meme? No but you can stop someone from monetizing your meme right? So that's.

Shawn

Um, okay sure.

Jaime Vining

I mean that's a different question right? like that's like the success going back to the success kid right? They they're able to stop someone from using it I don't know that the mother who uploaded the photo back in like 2006 like on Flickr thought that that was going to turn into such a big deal right? But then that kind of segways. Evan's point which is like what could have that mother. What could that mother have done or anybody else who's listening could do to protect their their ip and you know as Ethan you know, kind of already alluded to register the copyright office is meant to be used by starving artists right? I mean it's meant to be user. Friendly. Um, it's meant for artists to be able to go on there pay a nominal fee upload answer some questions upload a copy of the photograph hit submit and then get your registration certificate and there's no renewal There's no maintenance. It's just you get it and so sorry guys. Um. So if you are a content creator or photographer or someone who is interested in protecting their art from either becoming viral so you have no longer have any control over it online or monetizing it yourself. It's really important that you register it and like I said the process is meant to be really easy.

Ethan

Yeah, whether the process is super easy or not is kind of up for a debate and using the copyright office's website yeah meant to be. But yeah, if you're a creator you can do this on your own the filing fees I think are as little as.

Jaime Vining

Um, if it meant it's meant to be super easy. Ah.

Shawn

Um, is it.

Ethan

$35 up to like one hundred and fifty dollars like somewhere in that window for different types of things you hire Jamie you hire our law firm. We're gonna we're gonna add legal fees to make the process easier and likely make sure it's done correctly. Um, but for the first time but to do it yourself as as you can go about doing it and yeah, we just had a ah client.

Shawn

Are.

Jaime Vining

Right? right.

Ethan

Kind of reach out and it was the same exact situation without kind of getting into the details. The client was a nonprofit. They had some content go viral and now other people are using it to create t-shirts. Um, to make fundraising campaigns some of which are rogue and they're stealing money and some of which are like hey what you're doing is cool I'll split the profits with you and they're like we're losing control over this cool thing. What can we do and the answer is we've got to get these things copyrighted so that you can stop the bad people. From using your content in a way that's not okay and work with the good people and say Yes, Thank you, You can use these photographs for making merchandise then return send us a portiontion of the proceeds and everyone's happy but you but it's really difficult to stop the bad people and move the business reject.

Jaime Vining

Um, what you lose control. Yeah, you need the copyright if you want music control.

Ethan

Or without having a copyright.

Shawn

Yeah, well so what is there any protection for um, just the random every man who does who who has like a personal Instagram account. And puts up a picture. Maybe that's mildly embarrassing that he's hoping his friends will see and have a good time with but then that becomes an internet sensation. Is there any protection there or is there something people should do short of hey don't post embarrassing things where people can find them. Yes.

Jaime Vining

Well well, that's always a good one. Especially if you like tell my law students you know like your job hunting like let's clean up your Instagram account and no one wants to see those embarrassing photos if you're applying for a job. But um, you know so.

Shawn

Um, always yes.

Jaime Vining

In order to enforce your right of publicity going back to what we were talking about before and you know in the states that don't recognize that your your privacy. Um, you don't need to register that you you just own that you own your name you own your face you own your images of yourself right? exactly this you own this.

Shawn

Um, yeah.

Shawn

Um.

Jaime Vining

And so if someone takes some photos from you off your Instagram and turns them into a meme for their business or whatever you don't need to have that photograph registered to enforce your right of publicity. What Ethan and I are talking about are copyright infringement which is um I want to.

Shawn

Got it.

Jaime Vining

Want to say it's a stronger right? It's it's easier to enforce because it's a federal right? Ah, once it's registered the the remedies right? The the images.

Shawn

Her.

Ethan

Yeah, you don't have to prove once you have your work registered. You don't have to prove I lost money or you made money. There's specific statutory penalties that say you owe me at least $7500 minimum for taking my photo.

Shawn

Cool.

Ethan

So stop it and pay me 2500 now or I'm going to hire Jamie she's gonna file a lawsuit. You're gonna you're gonna owe more because my rights are so codified at that time.

Shawn

Amazing! all right? Well so then the answer is copyright copyright copyright and stop posting pictures of yourself drunk and passed out on the internet and people won't share those pictures.

Jaime Vining

Exactly.

Jaime Vining

Um, yeah.

Jaime Vining

Um, or if you do that right? If you do that but make it really private. You know, like real privacy settings are your friend.

Shawn

Expect that people are gonna share them. Yes, yes, exactly? Um, well this this has been awesome. Ah Jamie thank you so much for talking to us about this and answering all of our questions about memes and stuff.

Ethan

Delete Link link.

Jaime Vining

Um, um.

Shawn

Um, if people want to ask you questions. Ah for in exchange for money. Ah as your services provided where can people find you do you have a website or a place where people can you know go go seek you out.

Jaime Vining

Um.

Jaime Vining

Yeah, yes, ah so our firm website is friedlandvining.comfriedla and d viing dot com. Yeah.

Shawn

Cool, Amazing Freeland vinding we can if you send me a link I'll make sure that it's in the little show description too. So people can click on it make it really easy. Um Ethan where can people find you and this show.

Jaime Vining

Um, also thanks guys. Where are you Ethan.

Shawn

What are we doing where are when you eat it. Why are we doing this.

Ethan

You know if you want to create a viral meme using my image. Okay, ah that may or may not be copyrighted. So do so at your own Peril You could search for.

Shawn

That.

Jaime Vining

And then.

Ethan

Social media law firm on Instagram techktok Youtube or you can find me Ethan Wall Traveling around the world currently in Boulder Colorado sharing my adventures on Linkedin or you can just subscribe to the podcast and then you can say how great of a job. Not only Sean.

Shawn

Um, yeah.

Ethan

Our esteemed wonderful friend guest legal expert Shaun has had so many questions about memes and I'm like we need Jamie on the show we need the expert and that expert is you and you just made this some of our one of our favorite episodes ever. So thank you so very much.

Shawn

It's come up multiple times. Yeah, yeah, thank you so much for coming Ethan um I'll see you next time when we do another episode of the show and not a moment before.

Jaime Vining

Um, thank you guys so much for having me it so fun. Ah.

Ethan

Sounds good. Thanks guys.

Jaime Vining

Um, hey Bye guys.

Shawn

Ah, Bye buddy.