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 email. 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, it counted as commercial use (a violation when the IP isn’t licensed)
- My client assumed that because other people were repurposing this meme, they automatically could too
And this mistake almost cost them $40k (don’t worry, we were able to talk the creator down).
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. ⬇️
3 Questions To Ask When Considering Using a Meme For Marketing
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, you might find that a meme falls under "fair use" exceptions, allowing limited use of copyrighted material for purposes such as commentary, criticism, parody, or education.
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.
Many times business owners will take the extra step of trademarking to ensure that their brand is fully protected from copy cats.
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, there’s something called transformative use, which means that transforming the original content significantly can sometimes make it more permissible under fair use.
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 memes in your marketing, it’s smart to look for memes that fall under either of these domains to limit your risk!
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 stay on the safe side and still use memes throughout your marketing, use them solely for the purpose of parody, commentary, or education.
Such uses may be protected under fair use, but it's essential to ensure that your use falls within the boundaries of fair use law.
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. 👇🏼
In the Business to Brand Membership, I help creative entrepreneurs through legal business education create a rock solid foundation for their businesses and scale it without second guessing if they are doing it the right way.
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