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Monetizing a Meme

No doubt everyone reading this has seen at least a portion of this photograph of U.S. Senator Bernie Sanders (I-Vermont), if not in its original form, then incorporated into a meme. Senator Sanders has been quite good-natured about the photos ubiquity, and indeed has been able to monetize it for non-profit purposes. The senator put his image on a black sweatshirt made in the United States, sold it for $45 and gave the proceeds to Vermont’s Meals on Wheels, which supports nutrition for low-income senior citizens. Unfortunately, the sweatshirts have sold out.

Brendan Smialowski/AFP/Getty Images

The photographer, Brendan Smialowski, has also been good-natured about the use of his photograph. You can see his Rolling Stone interview here: .

Note that Senator Sanders had to authorize, explicitly or implicitly, sales of clothing bearing his likeness. Unauthorized sales could be subject to claims of infringement of his rights of publicity, a tort recognized in most states either in common law or statutory law.

The photographer (or his employer under the “work-for-hire” doctrine) owns the copyrights to the photograph itself. Senator Sanders may have sought permission to use the photograph of himself on sweatshirts, but it is possible that that step was not taken. (If wanting to profit from a meme, be sure to seek permission from copyright owners and those whose rights of publicity may be infringed.)

Memes can also be monetized for for-profit purposes. A good case in point is the company Grumpy Cat Limited, owned by Tabatha Bundesen, the owner of Tardar Sauce a/k/a Grumpy Cat.

Grenade Beverage paid $150,000 to use the cat’s image on its Grumppuccino iced coffee product. The company later used the image in excess of its licensed rights. Grumpy Cat Limited sued for copyright infringement and breach of contract, ultimately being awarded $710,001 in damages.

Grumpy Cat Limited has sued a number of entities in October 2020 in the U.S. District Court for the Northern District of Illinois. The counts in the lawsuit include:

· Trademark infringement and counterfeiting;

· False designation of origin;

· Copyright infringement; and

· Violation of the Illinois Uniform Deceptive Trade Practices Act.

Stay tuned for more on that suit!

As you can see, memes can not only be good fun, but can turn into a revenue stream, small or large. Returning to Senator Sanders, here is my favorite meme (so far) using his “mittens” photograph:

Post by: Jeffrey D. Myers, M.S., J.D.

Disclaimer: These materials are designed as a general overview and should not be relied upon for legal or tax advice. Please consult a qualified attorney and/or tax advisor for compliance and up-to-date information and advice specific to your circumstances.



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