Technology and law

 

Memes and counterfeit football T-shirts

 

A double yardstick, and a challenge as complex as it is fascinating: to establish a legal framework that protects human creativity

 

The victory of the Spanish football team in the recent World Cup has sparked a wave of memes, montages and images generated with artificial intelligence on social media. Almost at the same time, counterfeit football shirts – with one and two stars – and imitation merchandising with the national team's colours have appeared. It is already possible to buy T-shirts online featuring the two stars, even before Adidas's announcement that the official ones will go on sale on August 14.

Those memes and counterfeit football T-shirts may constitute infringements of intellectual property rights, in some cases of copyright and in others of industrial property. Nevertheless, society applies a double yardstick and some of these practices are much more normalized than others. While we are all aware that purchasing counterfeit T-shirts or unauthorized copies is an infringement, the truth is that we are much more permissive when it comes to memes, montages or images generated by generative artificial intelligence (GenIA). The vulnerability of intangible assets is less striking than the counterfeiting of tangible assets, as in the case of a T-shirt protected by a trademark.

Current debates on GenAI and copyright revolve around authorship, training of AI models, and the use of protected works. And while these issues are still the focus of legal debate, we accept quite naturally generating, receiving or forwarding the derived images, parodies and visual references that these days are spreading across social media. However, when the copy is a counterfeit T-shirt, no one doubts that we are dealing with an act of piracy and we are all aware that its purchase involves the infringement of someone else´s right.

In the digital environment, reuse, transformation and visual quotation have increasingly being normalized to the point of becoming part of everyday language. Memes, remixes, parodies and images generated with the help of artificial intelligence are shared massively. In fact, for the average person, this new way of sharing and generating content has blurred the line between legitimate inspiration and the unlawful use of  someone else's works.

Perhaps this is the core of the debate. Copyright was conceived for an analogue environment and, although it has since evolved, today it shows signs of exhaustion. Currently, a photograph may become a meme shared countless times. The same photo is reinterpreted thousands of times in a matter of hours. We can see how copying is no longer just about reproducing a work in an identical manner, as it also involves transforming or reusing it providing a new meaning to it. This new reality forces us to reinterpret traditional legal categories without undermining the protection of creators' rights.

Comparing the above with counterfeits of football T-shirts, scarves and all kinds of tangible merchandising is very revealing. No one disputes that the counterfeiting of a national football team garment is an unauthorised exploitation of protected distinctive signs. Society identifies these acts as unlawful, because there are original products involving clearly recognizable rights that are harmed by the sale of these counterfeits.

However, when we are dealing with memes, montages or images generated by AI, -which are clearly copies-, our perception changes completely. We almost see it as a spontaneous expression of collective creativity or a new form of humor. Moreover, it is this perception that makes us forget that, in many cases, the generation of these new creations has only been possible due to the existence of protected photographs, illustrations, characters, trademarks or other protected elements.

Of course, not all reuse constitutes copyright infringement, just as not all transformations fall within the scope of copyright limitations and exceptions. In any case, we need to remember that the digital environment is not beyond the reach of law.

The debate is not about determining whether we are dealing with "good" copies or "bad" copies or counterfeits. The difference lies solely in the context where it occurs, and in the social perception generated. While a counterfeit shirt is purchased with the purpose of replacing an original product, which is presumably much more expensive, a meme seeks criticism or entertainment, but both can harm the rights of third parties, albeit in different ways and, obviously, with different legal consequences.

The irruption of GenIA makes possible the generation of new content precisely because it has been trained on millions of protected works, forcing us to rethink long settled questions about authorship, originality and the scope of pre-existing rights. Therefore, we can see that the current challenge is no longer just to determine who creates a work and, therefore, who is the creator, author or rights holder. Now we must also be able to determine originality and personal imprint to decide whether it is worthy of protection.

The response to all these challenges must be in accordance with the reality of the digital culture we are currently facing. Now anyone can make a video or an image that goes viral instantly, but we must always keep in mind that copyright was born to encourage creation and protect those who generate cultural or intellectual value. It is not a matter of removing every barrier to reuse, but of striking a balance between new forms of creation and the rights of creators.

The victory of the Spanish national football team has left us with a scenario that invites reflection on intellectual property in the digital age. The difference between a meme and a counterfeit T-shirt is not only the medium, but also society´s perception behind both types of behaviours. While the first may seem a natural expression in our current digital culture, the second is immediately identified as an infringing act. The challenge is not to draw a red line on what may or may not be copied, but to be able to create a legal framework capable of protecting human creativity. The greatness of culture is precisely that it never starts from scratch but is always built on pre-existing work. This is precisely the delicate balance that copyright is called upon to defend.