In what has been dubbed the “ultimate boomer power move,” Fox has filed a trademark application for the phrase, OK, Boomer. Their filing lays out Fox’s intent to use the phrase with a reality, comedy, or game show.

The OK, Boomer phrase has graced a multitude of memes, created mostly by millennials, making fun of attitudes commonly ascribed to baby boomers. The phrase reached the height of its fame when a twenty-five-year-old New Zealand lawmaker used it as a quick flex in response to heckling from a much older colleague.

Publicity over Fox’s filing has led to speculation about everything from the wisdom of Fox’s move to the probability of their trademark application success. It even blew open an entire debate about copyright in the age of memes.

Can You Protect a Meme under Copyright Law?

That depends. Memes are typically a combination of photos, videos, or other images combined with some descriptive text or caption. They’re usually designed to be witty or to ridicule some aspect of human behavior. If they catch on, they can go viral as the OK, Boomer memes did.

While images and text can be copyright protected, short phrases cannot. Meaning, the OK, Boomer phrase is not by itself copyrightable. Copyright law requires at least a modicum of creativity, and it’s pretty well settled that short phrases, names, and words are not something that you can protect under copyright law.

Related: Yes, You Need a Registered Copyright

But the images, videos, and photographs that are integral to a meme are copyrightable, and owners have the sole right to reproduce them. So then, how is there such a proliferation of memes out there without an equal number of lawsuits? The answer lies in the doctrine of fair use.

Fair Use

Although memes certainly can be owned in the sense that there is copyright protection for the content in a meme, many times it’s fair use to repost it. Fair use is a doctrine of copyright law that allows someone to use copyrighted materials without the owner’s permission under certain conditions. Whether the use of a copyrighted work is “fair use” requires a case-by-case analysis, but parody, criticism, and commentary are very important factors.

If you comment on some content, as many memes will do with either biting criticism or sarcasm added to an existing photo or video, it is more likely fair use. If you don’t profit from it, you also boost the odds that it is fair use. Most memes posted freely on the internet fall into the latter category.

Changing Attitudes

It is impossible to know if something is fair use until a court confirms that it is. The process purposely functions on a case-by-case basis and is mostly subjective. This means there is a bit of chaos, but it also allows courts to adjust to the changing times. For the most part, laws lag considerably behind the technology. The case-by-case approach allows for consideration to be given to new norms.  

As reposting and curation of memes and other content becomes more prevalent and acceptable, the courts will likely follow these cultural trends. These laws are often interpreted in the context of the culture in which they exist, especially for more subjective things such as fair use.


While Fox cannot claim copyright protection over the phrase, OK, Boomer, trademark law may be a different story. Unlike copyright law, under trademark law, you can get protection for the use of a word or phrase that identifies and distinguishes the source of the goods of one party from those of others, which is exactly what Fox is attempting to do.

An important aspect of trademark law is that the words or phrases need not be created by the trademark holder. Trademark rights may be obtained by simply using a word or phrase first. There’s nothing intellectual about trademark use. Fox didn’t come up with, OK, Boomer. It’s not their intellectual creation, but they want to associate it with their new TV show. It’s more like rights by appropriation. And that how trademark rights accrue–appropriation by use. 

Unfortunately for Fox, it will likely face a few hurdles in its attempt to trademark OK, Boomer.

Related: Beyoncé, Blue Ivy, and the Kardashians: The (Big) Business of Trademarks

The Trouble with Trademarks

First, Fox faces some stiff competition in its trademark attempt. At least five other trademark applications are pending for the phrase OK, Boomer, including one for a comedy show already in production. The University of Oklahoma, nicknamed the Boomers, has been vigilant in defending its Boomer related trademarks, which include Boomer Sooner. There is also a chain of theme parks called Boomer that owns an existing mark for video games under that name. Yet, Fox has also applied to trademark OK, Boomer video games.

There is also the question of whether or not the U.S. Patent and Trademark Office will issue a trademark for a phrase that is now so commonly used. For a trademark association to be secured, there has to be an established association with a company, product, or service. The more frequent a term or phrase is used in everyday speech or an associational or affinitive manner by various sources, the less likely consumers will perceive the matter as a trademark or service mark for any goods and services.  And others who have tried, namely Cardi B. with Okurr and Lebron James with Taco Tuesday, failed to secure trademarks for this reason.

Lessons from the Doge

The internet can be very protective of its memes. Even if Fox is successful, it could face blowback for its attempt to appropriate OK, Boomer. This is precisely what happened with Ultra Pro when they trademarked the infamous Doge, a viral meme featuring a Shiba Inu dog surrounded by internal monologue written in colorful Comic Sans font.

The company was eventually pushed to declare that they would not enforce their trademarks on anything other than products similar to their own.

However, the Fox case turns out, the future of copyright and trademark law in the age of the internet and viral memes should prove to be ever-evolving and very interesting.

OK, Boomer, the times are changing.