The Not-So Funny Legal Trouble That Using Memes For Marketing Can Land You In (And How To Avoid It)

Picture this: You see a hilarious meme on Instagram and decide to use it in an ad.

You change the text so that it’s not *technically* the same content. Then you post, proud of your work and convinced you were born to be a comedian. 

You go to bed as the likes roll in (maybe even the sales!), only to wake up to a $40,000 demand letter in your inbox. FORTY THOUSAND DOLLARS. 🤯

Yes, this really happened to my client. 

 

Here’s what went wrong:

• The original meme was copyrighted by the original creator (they owned the IP)
• Because my client used the meme in an ad, the use was commercial, which can make a fair use argument more difficult. But commercial use does not automatically mean copyright infringement, and fair use is determined based on the specific facts and circumstances of the use.
• My client assumed that because other people were repurposing this meme, they automatically could too

And this mistake resulted in a $40,000 demand letter. (Don’t worry, we were able to negotiate with the creator and ultimately reduce the amount demanded.)

It's no secret that funny content can help boost sales – just look at how marketing agencies try to one-up each other during the SuperBowl.

But for those of us trying to run our business without primetime advertising budgets, that means leaning on social media to get more reach and connect with our audience.

One of the simplest and best ways to achieve that is through humor, including hilarious memes and super fun trends.

BUT we still have to follow the same sort of guidelines the government sets out for advertising, whether you're a small business OR a large corporation.

But if you’re not a legal expert, how do you know what’s okay to use and what isn’t? You know I’ve got you covered. ⬇️

Can You Legally Use Memes for Marketing? 3 Questions to Ask First 

Is the meme protected by copyright?

Memes often use images or content that are protected by copyright and using copyrighted material without permission can potentially violate copyright laws.

This was the case for my client’s scenario described above!

In some cases, a use of copyrighted material may qualify as fair use, a legal doctrine that can permit certain uses of copyrighted works without the copyright owner's permission.

Courts consider several factors, including the purpose and character of the use, the nature of the copyrighted work, how much of the work was used, and the effect of the use on the potential market for the original.

Commercial use is relevant to the analysis, but it does not automatically rule out fair use.

Do you have permission?

If you know that a meme is protected by copyright, it’s best to seek permission from the original creator or copyright holder.

In some instances, creators might allow their content to be used for specific purposes or may charge a licensing fee.

And I can promise you… their licensing fee will likely be WAY less than what’s often requested in a demand letter.

Is the meme protected by trademark?

In addition to copyright concerns, using memes in advertising could potentially involve trademark issues if the meme includes logos, brand names, or other protected elements.

Trademark issues can also come into play if a meme includes a recognizable brand name, logo, slogan, or other trademarked element.

Using someone else's trademark in a meme does not automatically mean you're infringing, but your use could create issues if it suggests sponsorship, affiliation, endorsement, or another misleading connection with the brand.

So it’s important to fully understand where the meme lies and that you don’t cross any legal boundaries for the sake of marketing.

How To Use Memes Legally In Your Advertising

Create Original Content

Instead of using existing memes, it’s always best practice to create ORIGINAL content inspired by the meme format.

Doing so allows you to avoid potential copyright issues by using your unique imagery and messages while still capitalizing on the style and humor associated with memes.

Obtain Proper Licensing

If you want to use an existing meme that incorporates copyrighted material, you MUST seek permission from the original creator or copyright holder like mentioned above!

But that doesn't always mean permission will be granted. At the end of the day, it’s THEIR content, so they aren’t required to grant permission for use.

Oftentimes when asked to use copyrighted content, you’ll find that you might need to negotiate licensing terms or pay a fee for the rights to use the content in your advertising.

And as mentioned above, that fee will likely be far less than that of a legal fee. 💸

Transform the Content

In the legal world, you may hear the term "transformative use" in discussions about fair use. Generally, the question is whether the new use adds something new or serves a different purpose rather than simply repackaging the original work.

But there is no magic formula for how much you need to change a meme to make it "transformative," and simply adding new text, cropping an image, or changing the context does not automatically make the use lawful. Fair use is a fact-specific legal analysis, so if you're relying on fair use for commercial marketing, it's worth getting legal advice before you publish.

For instance, if you use the meme with the original image, but with substantial alterations that creates a new message or context, it might be considered transformative.

Although this sometimes can work, this can be a complex legal area, so it’s always wise to consult with a legal professional to assess the level of transformation needed for compliance.

Use Public Domain or Creative Commons Content

Some memes use content that is in the public domain or under Creative Commons licenses that permit certain uses.

The public domain refers to a category of creative works or intellectual property that isn't protected by copyright law or any other legal exclusivity, which means these works are freely available for use by anyone for any purpose without permission or payment because their copyright has expired or they were never subject to copyright protection.

Creative Commons, on the other hand, is a nonprofit organization that provides a set of licenses and tools designed to make creative works more accessible for sharing and reuse while allowing creators to retain certain rights.

The Creative Commons licenses provide a middle ground between the traditional "all rights reserved" copyright model and the public domain. Essentially, they enable creators to specify the permissions they grant to others regarding the use of their work.

If you want to use existing images or content in your marketing, look for material that is genuinely in the public domain or covered by a license that permits your intended use. Creative Commons content can sometimes be used commercially, but the specific license matters. Some licenses require attribution, while others restrict commercial use or derivative works. Always check the terms of the license before using the content in your marketing.

Parody or Commentary

The reason my client was served a demand letter of $40,000 is because she used a meme in an ad that was directly promoting her product or service, meaning she would be making money off of the content. 

If you want to reduce your risk while using humor in your marketing, consider creating original memes or using properly licensed content. Parody, commentary, criticism, and education can sometimes qualify for fair use, but simply labeling your marketing as "parody" or "commentary" does not automatically make the use legal.

Fair use depends on the specific facts, and commercial marketing can add another layer of complexity.

Before You Post a Meme, Run Through This Checklist

Before using a meme in your business marketing, ask:

• Did I create the image or video myself?
• If not, do I know who owns the original content?
• Do I have permission or a license to use it commercially?
• If the content is under a Creative Commons license, does that specific license allow commercial use?
• Does the meme include someone else's logo, brand, or trademark?
• Does it feature a recognizable person's image or likeness?
• Am I relying on fair use? If so, have I actually considered the factors involved, rather than assuming "it's a meme" makes it fair use?

If you can't confidently answer these questions, the safest move is usually to create your own original content or use content that you have clear rights to use.

FAQs About Using Memes for Marketing

Can I use a meme I found on Instagram to promote my business?

Not necessarily. Finding a meme online does not mean you have permission to use it for your business. The underlying image, video, artwork, or other content may be protected by copyright, and the meme could also raise trademark or publicity-rights concerns.

Is it legal to use a meme if I change the text?

Not automatically. Changing the text or modifying an image does not, by itself, make the use lawful. Depending on the circumstances, the modified version could still implicate the copyright owner's rights. Fair use is a fact-specific analysis.

Does fair use apply to memes used in advertising?

It can, but you shouldn't assume it does. Commercial use is one factor considered in a fair use analysis, but it is not an automatic bar to fair use. The specific facts of the use matter.

Can I use a celebrity's photo in a meme for my business?

Be careful. In addition to copyright concerns, using someone's image or likeness in commercial marketing can potentially raise publicity-rights issues. The rules vary depending on the circumstances and applicable state law.

What's the safest way to use memes in my marketing?

The lowest-risk approach is generally to create original content yourself or use content that you have clear permission or a license to use. If you want to use third-party copyrighted content and believe fair use may apply, consider getting legal advice before using it in commercial marketing.

Save Your Business From Getting Sued

Moral of the story: memes are fun, but they’re not worth getting sued over. 🙅🏼♀️

Sure, they might add some humor to your brand and make you feel more relatable, but they won’t be so funny when you’re served a demand letter like my client was. 

If you’re eager to keep using memes in your marketing, you can do so, but make sure you’re following the tips above to do so legally!

And remember: memes aren’t the only social media or brand-related thing that could cost you in the future.

So if you want to avoid those things too, I’ve got a pretty sweet place for you to be. 👇🏼

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ABOUT THE AUTHOR, AMBER GILORMO – ATTORNEY AND FOUNDER OF THE BOUTIQUE LAWYER

Amber Gilormo is the cool lawyer behind The Boutique Lawyer – a one-stop contract template shop for creative entrepreneurs, online business owners, coaches, and service providers.

From client agreements to digital product terms and everything in between, our lawyer-drafted templates take the guesswork out of staying legally protected online (no legal jargon required).

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