Viral Trademarks – Protecting Catchphrases, Content and Memes from Viral Posts and Videos Using Trademark Rights

Viral content has long been a staple of popular culture. Famous memes such as “Kilroy was here” have been circulating since World War II, while the advent of the internet and social media have increased the speed with which viral content is disseminated.

Many viral meme and viral video creators are considered “one hit wonder’s” – having created only a single piece of viral content. Moreover, many viral meme and viral video creators earn little to no money from their viral content – notwithstanding having created something tremendously popular and socially “valuable.” This lack of monetization can often be explained by the struggle viral meme / viral video creators face in meeting two of the most basic intellectual property criteria: ownership and excludability.

Copyright Law Often Insufficient:

With respect to ownership, memes and videos are most commonly thought of as implicating copyright law – the area of law which protects artistic expressions of an idea. However, the copyright ownership of viral memes and viral videos is often questionable and insufficient.

For example, many popular memes are created by taking a still frame from a popular movie scene and superimposing text over such scene. One of the best-known memes of this type is the “Matrix Morpheus” meme. The same issue arises with respect to many viral videos – which often contain copyrighted music and/or video images owned by third parties.

With respect to excludability, it is often impossible to police viral memes and videos. Moreover, any attempt to restrict the circulation of such content would negatively impact the “claim to fame” of such content. A prudent viral content creator seeks to simultaneously monetize the content without taking any action which could risk “chilling” the organic, viral reach of such content. Finally, because of the ownership issues, it is often impossible or impractical to use copyright law to monetize viral memes or viral videos.

For example, whether creating such a meme constitutes fair use or copyright infringement is an evolving area of the law – and one which our firm believes will ultimately be dictated by the “millennial mores” of freely sharing viral content. In either case, however, creators face struggles to exclude others from using / reproducing such content. If the creators are considered not to own the copyright in a meme, then they have no rights to exclude others. If, however, the creators are seen as having made fair use of a third party’s rights, then others can often similarly make fair use of such rights.

For example, once a viral meme has been published, third parties can use the same underlying “concept” to create new content – often without violating any copyrights which may have attached to the original meme. For example, superimposing text over an image of the fictional character Morpheus from The Matrix franchise is something which any number of third parties could do without needing to have ever seen the first such Morpheus meme. Indeed, at least one website even offers a “meme generator” so that users can create their own Morpheus meme.

Using Trademark Law to Monetize Viral Content:

Trademark rights are a powerful – and, until recently, overlooked – source of protection for those who have created viral memes or viral videos. Importantly, such trademark rights often cannot be used to protect the memes / videos themselves. Rather, the creators of such content use merchandising, licensing, product endorsements and other “ancillary” sources of revenue to monetize their creations.

One of the best examples of using trademark rights to monetize viral content comes from the creator of the viral “Honey Badger” video which, as of publishing, had been viewed over 90 million times. This video contains a comedic voiceover narration of Nat Geo Wild footage of honey badgers and includes the now-popular catch phrases “honey badger don’t care” and “honey badger don’t give a s___”. The video’s creator, Christopher “Randall” Gordon, wisely began protecting and monetizing his brand by selling everything from t-shirts to paperback books and owns a number of trademark applications to protect his brand, including:

HONEY BADGER DON’T CARE (Reg. No. 4419079) in Class 9 for covering:

“Audio books in the field of comedy, parody and satire; computer application software for mobile phones, portable media players, handheld computers, namely, software for playing games”

HONEY BADGER DON’T CARE (Reg. No. 5059721) in Class 16 covering:

“Bumper Stickers; decals.”

HONEY BADGER DON’T CARE (Reg. No. 4281472) in Class 21 covering:

“mugs”

HONEY BADGER DON’T CARE (Reg. No. 4505781) in Class 25 covering:

“Clothing, namely, t-shirts, tank tops, one piece garment for infants and toddlers; Long-sleeve shirts, caps.”

and

HONEY BADGER DON’T CARE (Reg. No. 4419081) in Class 28 covering:

“Christmas tree ornaments and decorations; Talking dolls and plush toys.”

On December 23, 2016, Mr. Gordon filed a new trademark application in Class 25 for t-shirts for HONEY BADGER DON’T GIVE A SHIT (Serial No. 87280166) – presumably in anticipation of evolving rules regarding the registration of immoral or scandalous trademarks.

Another viral video example comes from Kayla Newman a/k/a Peaches Monroee who posted a 12 second Vine video of herself in which she said that her eyebrows were “on fleek.” Ms. Newman’s video went viral and the phrase “on fleek” quickly entered the lexicon. Like most viral video creators, Ms. Newman did not earn any money for such usage. Unlike many viral video creators, however, she took the initiative – launching a GoFundMe campaign to raise seed money to start a business, then filing a trademark application for ON FLEEK (Serial No. 86606936) in Class 25 for a variety of clothing and footwear items. Indeed, Ms. Newman appears to also own an e-commerce business called “On Fleek Extensions” which sells hair and eyelash extensions.

One final example is Danielle Marie Bregoli a/k/a Bhad Bhabie. In 2016, Ms. Bregoli was interviewed for a segment on the Dr. Phil show entitled “I Want To Give Up My Car-Stealing, Knife-Wielding, Twerking 13-Year-Old Daughter Who Tried To Frame Me For A Crime.” During this interview, Ms. Bregoli – then 13 – said “cash me outside how bow dah.” This clip went viral and propelled Ms. Bregoli into internet stardom – helping her acquire over 16 million followers on Instagram and a record deal with Atlantic Records.

Thus far, Ms. Bregoli’s company has filed at least eight trademark applications for iterations of her signature catchphrase, to wit:

CASH ME OUSSIDE HOW BOW DAH (Serial No. 87434656) in Class 25;

CASH ME OUSSIDE HOW BOW DAH (Serial No. 87434647) in Class 41;

CASH ME OUTSIDE HOW BOW DAH (Serial No. 87433913) in Class 25

CASH ME OUTSIDE HOW BOW DAH (Serial No. 87433903) in Class 41;

CASH ME OUTSIDE (Serial No. 87433710) in Class 25;

CASH ME OUTSIDE (Serial No. 87433683) in Class 41;

CASH ME OUSSIDE (Serial No. 87430137) in Class 41; and

CASH ME OUSSIDE (Serial No. 87430129) in Classes 3, 9, 14, 16, 18, 21, 24, 25, and 28.

Such efforts help explain how Ms. Bregoli’s net worth since appearing on the Dr. Phil show has grown to an estimated $4 million.

Potential Perils of Monetization:

With all the “pros” of monetizing viral content, it is important to also consider potential “cons.” Perhaps the biggest drawback is the risk of being seen as “inauthentic” or “greedy” – which can harm a person or organization which creates viral content.

A good example of this is the Amyotrophic Lateral Sclerosis (“ALS”) Association which raised over $100 million through its viral “Ice Bucket Challenge” fundraiser in 2014. The ALS Association filed four trademark applications on August 22, 2014 in Class 36 for “charitable fundraising” to protect its viral “ice bucket challenge” fundraiser, to wit:

#ALSICEBUCKETCHALLENGE (Serial No. 86375307);

ALS ICE BUCKET CHALLENGE (Serial No. 86375305);

#ICEBUCKETCHALLENGE (Serial No. 86375299); and

ICE BUCKET CHALLENGE (Serial No. 86375292)

Despite the ALS Society’s legitimate concerns after having seen “unscrupulous profiteers trying to drive revenue to themselves,” there was widely reported public outcry inasmuch as the ALS Association was not the first organization to use an ice bucket challenge as a fundraiser. Indeed, such outcry was significant enough that the ALS Society filed express abandonments of the four applications listed above on August 29, 2014 – a mere seven days after the initial filings.

If you have created a viral video or social media post which you want to monetize, call us today for a free consultation.