Viral content: an intellectual property headache

We’ve all received the viral messages, with funny jokes or quotes or amusing videos (of cats, it’s always cats).

We spend a minute or two laughing at them, maybe sending them on, and then get back to whatever we were doing. But, what about those behind the content? Who are they? How does their content end up going viral, and can they do anything to get credit for all the laughs they’re responsible for?

It’s always hard to know how or why any particular material will capture the public imagination but once something goes viral you can be sure everyone will know about it. So what do you do on that fateful day when you eagerly open the latest message you’ve been sent to find the content staring you back in the face is the very same content you created?

On one level, it’s great. People are laughing because of you. Your work has made its way around the world. Fantastic! But no one knows it’s your work. Maybe you don’t care. You just want to make people smile. But what if you then find someone else taking credit for it? Or maybe making money out of it? Surely, that’s not fair? So what, if anything, can you do about it?

Patricia Collis
Patricia Collis

The first thing to remember is that the law doesn’t protect ideas per se. So maybe you are the first person to create a video of an animated pig dressed as a detective and jiving to some dance music. So what? Do you own the idea, and can you stop everyone else doing the same thing? What is “the same thing”? What if they change the pig to be a squirrel? And what if they change the music? Have they stolen your idea, or merely been inspired or influenced by it?

There are multiple legal issues at play and in any given instance the legal position can be quite complex. Intellectual property rights are generally territorial in nature, but the internet means that work you create at home can end up being viewed across the world. The key thing to bear in mind is that whilst you can’t protect an idea, you can obtain protection for a particular manifestation of an idea. The most relevant form of protection will usually be copyright, which generally arises through the mere creation of a work and without the need for any form of registration. Other rights including trade marks and design rights may also be relevant in certain circumstances.

However, in reality the most important thing to bear in mind is control. At the end of the day, if you want the credit for your work you need to be able to show that it actually is your work. Evidence of this is key but the internet is a fast moving environment.

If you want to reclaim something that’s been shared you need to move quickly. Get the message out there that it’s your work. The same is true whether you’re an individual, a small company, or even a large multinational organisation. If you’ve created something in which intellectual property rights subsist and you want to prevent others making money out of it you need to let people know that it’s your work.

In an ideal world, you make sure your name is associated with your work from the very outset, and when others take action that infringes on your rights you get a lawyer to write to them, detailing your rights and asking them to stop, and they then stop. But, in the real world there are a number of factors to weigh up in deciding how to act, including the strength of your legal case, the costs of pursuing the matter formally, the likely public perception of the matter and, perhaps most crucially, what you hope to achieve – do you want the credit; do you want money; do you just want them to stop? You also need to bear in mind that even if you do own rights they may not actually have been infringed, or the other party in question may have a defence.

Where potentially short-lived viral content is concerned social media is often a useful tool for spreading your message. This can help you achieve the dual aims of letting people know that something is your work, and also using the popularity of that work to promote any future work. If your work continues to capture the public imagination the next step is to make sure you capitalise on this continued popularity to build a brand. Needless to say, you then need to make sure you protect and enforce your brand to stop others taking advantage of your name for their own gain.

Patricia Collis is a trademark attorney at Bird & Bird

Some viral creations that escaped their owners 

100% True :here
100% True’s content – short, funny soundbites – was prime material for ripping off on the internet.

100% True

In 2000, three York University graduates set up :here magazine, an irreverant publication covering York issues and nightlife. One of its most popular features was ‘100% True’, a page of witticisms such as ’Triangular sandwiches taste better than square ones’, and ’Everyone always remembers the day a dog ran into your school.’

The truths started to pick up national media attention with the likes of Sara Cox and Chris Moyles reading them out on radio. But then the creators started to recieve viral emails of their work – but with no credit given to them.

“We realised that someone had just copied a whole load of our ideas and emailed them out and there was absolutely nothing we could do about it,” they told The Guardian.

“It was really annoying. We spent three years thinking up these things. Now people are sending them back to us suggesting that we put them in the magazine and they have no idea that we wrote them in the first place.”

More than a decade on, if you poke around the internet you’ll still find some of :here’s universal truths knocking around. Quite often, they’re listed as being “Peter Kay’s words of wisdom.” But they’re not.

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Ninja kitten: bright, cute and ripe for copying

Ninja Kittens

While :here’s work was copied and emailed out by some anonymous person for no commercial benefit, Joel Veitch’s work was taken up by one of the world’s biggest companies. Veitch was the singer in an unsigned British band that had a catchy litte song called Ninja, accompanied by a video that included some distinctive dancing kittens.

Fans alerted him to the fact that a Coca-Cola ad being aired in Argentina bore uncanny similarities to the video. After talks, Coke eventually settled out of court.

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