A British singer tweeted the line in 2017, creating controversy around Lizzo’s attempt to copyright it, but this isn’t the first time it’s happened

I just took a DNA test, turns out I’m 100% too late to copyright this meme because Lizzo is already in the process of doing so.

Yes, that’s right, Lizzo, one of 2019’s biggest breakout stars, is trying to trademark the phrase “100% that bitch” from her hit single Truth Hurts for use on clothing and entertainment services.

There’s nothing unusual about an artist trademarking a popular phrase from one of their songs. However, Lizzo’s trademark application, filed in June, is causing some controversy. You see, in February 2017 a British singer who goes by the name Mina Lioness tweeted: “I did a DNA test and found out I’m 100% that bitch.” It went viral.

Seven months later Lizzo released Truth Hurts, which features the same memorable line. (If you’re wondering why the song only became so popular recently, it’s because it was featured on the Netflix romcom Someone Great, which came out in April.)

So did she steal Mina Lioness’s tweet? Not according to Lizzo. When confronted about the meme in early 2018, the singer tweeted: “Ive never seen this before in my life…But u know…The odds of multiple people having the same idea are VERY high.”

Shortly after that, however, Lizzo tweeted Mina Lioness and explained:

|L I Z Z O| (@lizzo) Truth Hurts was written in June fyi— someone made a meme on IG that said “I’m 100% that bitch” and we were inspired, I give that meme credit when I talk about making the song. I’ve never seen ur viral tweet but I’m glad it exists.

The 2018 back-and-forth didn’t get much attention. However, the controversy flared back up again last week after Mina Lioness discovered that Lizzo, now a mega-star, had filed a trademark application. “What I cannot get over is how brazen Lizzo and her team have been in ignoring my whole presence,” Mina Lioness tweeted on Saturday. “They’re doing it because they know I have no capital to address her. I’m just the poor Black girl from London that don’t have a dog in the fight.”

Trademark law on fleek

Here’s the thing: even if Lizzo did take Mina Lioness’s tweet, it doesn’t really matter when it comes to intellectual property (IP) law. Simply tweeting a phrase doesn’t grant you any legal rights.

Deborah Peckham, an IP specialist at Boston-based law firm Burns & Levinson, notes that if Mina Lioness had commercialized her tweet by, for example, printing it on T-shirts, or using it as a tagline for services, then she might have grounds to contest Lizzo’s trademark application. However, “merely saying a short phrase or word in public doesn’t give you a legal monopoly over it”.

Eyebrows on fleek: the original Vine by Peaches Monroee. Photograph: Vine/Peaches Monroee

Mina Lioness isn’t the only person to have found this out the hard way. Speaking over the phone, Matt Schimkowitz, senior editor at Know Your Meme (the Wikipedia of memes) notes that “Peaches Monroee has claimed for years now that she got unfairly treated in the ‘on fleek’ trend, when people were putting it on T-shirts without crediting her.”

To refresh your memory: Monroee, whose real name is Kayla Newman, popularized the phrase ‘“on fleek” in 2014 when the teenager uploaded a Vine of herself saying “eyebrows on fleek”. The short video got over 20m views in five months and it wasn’t long before brands had appropriated it for marketing tweets, like Ihop’s “pancakes on fleek” tweet.

Nicki Minaj also used the phrase in her hit song Feeling Myself, and took credit for introducing it to the world. Minaj even called out singer Christina Milian for printing “On Fleek” on T-shirts, joking that she was waiting for her percentage of the royalties. It seems like the only person who didn’t monetize the meme was the young black woman who created it.

Seizing the memes of production

Kids getting exploited for their unpaid viral labour is, of course, how the digital economy tends to work. Schimkowitz notes that “a lot of people who are creating memes are teenagers” who don’t automatically protect their viral creations with trademark applications. And while monetizing memes may be a modern phenomenon, Schimkowitz points out that “marketing people taking trends from teens is not a new thing – that’s being happening since they invented teenagers”.

This isn’t to say that young meme-makers never profit from their viral frame. However, it does seem that the kids who get credit for their creations tend to be white, while the kids who have their work appropriated tend to be black. In 2016, for example, a teenager called Daniel Lara shot to international fame after a video of his friend yelling “Damn Daniel, back at it again with the white Vans” went viral. Lara got a lifetime supply of Vans, was invited on Ellen, and trademarked the phrase Damn Daniel through the company Damn Daniel LLC.

Danielle Bregoli, who went viral in 2016 for saying what sounded like “Cash me ousside” and “how bout dat” on Dr Phil, has also cashed in on her 15 minutes of fame. She trademarked both phrases and has threatened legal action against companies using them. Bregoli now has a $1m publishing deal with Pulse Music Group and a $900,000 partnership with CopyCat Beauty. All thanks to going viral when she was 13.

When memes become too mainstream

Now, let’s say you’ve just fired off a hilarious tweet and are watching it transform into a viral meme in front of your eyes. If you call up a trademark lawyer quickly enough, are you going to be laughing all the way to the bank? Not necessarily.

Sometimes memes or phrases become so ubiquitous that they are impossible to trademark. Peckham notes, for example, that that US Trademark Office declined to register applications to trademark OCCUPY WALL STREET (yes, I regret to inform you people really tried to trademark OCCUPY), explaining that “the more commonly a phrase is used, the less likely that the public will use it to identify only one source and the less likely that it will be recognized by purchasers as a trademark”.

“No doubt the same fate arguably would doom an application for a viral internet meme if it were used ubiquitously by many users,” Peckham says. However, while the phrase “100% that bitch” may have become pretty mainstream, Peckham expects that Lizzo’s trademark application will ultimately be approved. While “common, it’s not quite a big, newsy or politically transcendent as OCCUPY”.

Ultimately, says Peckham, there are two big lessons to take away from the Lizzo trademark dispute. First, “if you want to protect or leverage your great idea or catchy phrase, you should act fast before it goes viral”.

Second, the internet always wins in the end. “Even if the law isn’t on the side of the original writer of the tweet, the power of the internet might still ensure that a second user (Lizzo) cannot cash in by getting a monopoly on the phrase either. The internet will likely own it in the long run … which means we can all go on claiming we are all that bitch.”