The regulation of “memes” in Spanish law
Creators of memes do not have to seek permission from the author of the original work as long as there is no risk of confusion
On 4 November, Royal Decree-Law 24/2021 came into force, transposing a multitude of European directives into Spanish law, and which, among other things, introduces new features into the Intellectual Property Law. Among the main new features is the introduction of the term “Pastiche” – colloquially known as “memes” – into Spanish law.
In this regard, Article 70 of the aforementioned Royal Decree, entitled “Pastiche”, establishes the following: “The transformation of a disclosed work that consists of taking certain characteristic elements of an artist’s work and combining them, in such a way that they give the impression of being an independent creation, does not require the authorisation of the author or rightholder, provided that it does not entail a risk of confusion with the original works or performances and no harm is done to the original work or to its author. This limit shall also apply to digital dissimilar uses” With this wording, the legislator grants memes the same value as parody or caricature.
In this respect, it should be recalled that article 39 of the Law on Intellectual Property establishes that a parody of the work disclosed is not considered a transformation that requires the author’s consent, provided that it implies a risk of confusion with the work itself and does not cause damage to the original work or its author.
Now, what is meant by “pastiche”? The RAE defines “pastiche” as the imitation or plagiarism that consists of taking certain characteristic elements of an artist’s work and combining them in such a way that they give the impression of being an independent creation. In our opinion, this is a somewhat broad and ambiguous definition, which does not distinguish it from parody.
The difference between the two terms is given in the definition of “memes”, which the RAE defines as an image, video or text, usually distorted for caricatural purposes, which is disseminated mainly through the Internet.
Thus, we identify pastiche as the imitation or repetition in which different elements are mixed (the image of Julio Iglesias pointing his finger in which different phrases are incorporated depending on the creator is a clear example of a “meme”).
Having said this, we understand that if the legislator has freed the creators of “memes” from requesting authorisation from the corresponding authors, it is because he wanted to protect the ingenuity of people who manipulate and mix other people’s works, usually in the digital sphere, and who generally do not have economic interests; and all of this, with the aim, in our opinion, of preserving criticism and humour.