A common question that crosses our desk: can you legally use a meme in your marketing? 

As online business owners, we of course want to use any tool possible to provide quippy and memorable content for our brands. At the same time, we have had instances where clients ran into legal trouble using memes in their online marketing. 

With the Superbowl this weekend, and the virality of photographs of a certain celebrity and her famous NFL boyfriend that immediately followed the AFC Championship, you may be thinking about incorporating some memes into your marketing. Below is a breakdown of what you need to know before you leverage pop culture imagery into your own work. However, I do want to be very clear about some key takeaways:

• Yes, you usually can use a meme on social media, as long as you fall within fair use guidelines. 
• Be careful if using a meme in a more permanent or fixed format if you aren’t positive that you’re utilizing the “fair use” doctrine of defense correctly (sometimes, it’s as simple as who gets caught. Not every use of a meme you see online is legal). 
• It is possible to be sued for using another person’s meme if you’re using it to try to make money. If you’re marketing your business, you likely fall into this category, especially if directly marketing a product or service
• Never use another company’s trademarks in a meme- the Fair Use doctrine only applies to copyrights 

Let’s dive in: 

First, make sure you aren’t using someone’s copyrighted image

The easiest and lowest-hanging fruit: make sure you aren’t using someone’s copyright image in your online marketing. Ie, if you want to just use a photograph of a moment in pop culture, check that you’re clear to use the photograph from a copyright perspective. After all, willful violations of copyright infringement can incur damages of up to $150,000 in federal court. 

An easy, everyday way to implement your own checks and balances system into your workflow: run a reverse image search on google. Select “tools”, and then select “Creative Commons licenses”. This will auto populate images that are available to use. A few other sources are Unsplash, Pexels, and Wikimedia Commons, but always check the fine print of the license attached to the photo.

A couple of extremely important and rarely-discussed notes: 

• The copyright owner or photographer isn’t always the only party who has rights to a photograph. This is one of the times I hear a conversation in the “legal world” regularly (ie, almost daily), and rarely hear business owners discuss this fact. Granted, most who encounter these scenarios are bound by confidentiality agreements. However, know that agencies may have the rights to a copyrighted image used as a meme. There are some in particular who have notorious reputations for hitting small businesses with steep demands in cease and desists (>$20,000 in “damages” per use). 
• Memes themselves can be copyrighted, so before you share in a fixed format, ensure the meme itself is clear to use
• If you’ve found a website that allows you to download the meme for free, read the fine print re attribution, and duration of your permitted use. It’s not always perpetual, and this is usually where agencies have the grounds to send those nasty cease and desists. 

Does your use fall within the doctrine of “Fair Use”?

Fair Use is essentially the law’s way of protecting creators when creating something that may contain aspects of someone else’s copyrighted work. It is a public policy doctrine that, in essence, attempts to allow for creativity, while also protecting registered copyright rights. 

The applicability of a fair use defense is a case-by-case determination; a balancing act wherein the creator must avoid diminishing the original creator’s market value or competing directly with their economic interests. The litmus test? If your meme usage veers into a business or promotional tool, you’re likely stepping outside the safe zone of fair use.

The courts scrutinize several factors: the transformative nature of the work, the type of copyrighted material used, the extent of usage, and the impact on the original work’s market. It’s a delicate dance of borrowing and reinvention, where the intention and execution determine the legal standing. In other words, how uniquely creative (“transformative”) is the new work compared to the original work? Many times, memes fall under this defense (again, assuming you’re not just re-sharing a registered meme). Most importantly, just don’t compete with the original meme creator’s ability to profit economically from their work. 

However, there is a second defense that usually allows for the use of memes in marketing: the doctrine of “parody”. Parody, a subset of fair use, wields humor to critique or comment on an original work. Although parodies are more likely to be considered fair use, that protection is not automatic. Each particular parody would need to undergo the four-factor fair use analysis laid out in Section 107 to determine whether it can be constituted as fair use. Again, generally speaking, courts would weigh the factors of:

• First, the purpose and character of the use. Is the new creation used for commercial purposes? Is it “transformative”? 
• Second, is the copyrighted work creative or factual? 
• Third, how different is this new use compared to the original?
• Fourth, does the new work compete with the market of the original work?

In other words, does your meme serve a different purpose than the original photograph? Most likely, which is why this is typically a loophole that can be utilized for online marketing and memes. 

However, there is one more factor to be aware of:

The celebrity factor 

Utilizing a celebrity’s image in a meme can be particularly dicey, and actually, approximately half of the states in the United States have their own rules when it comes to celebrities. If you don’t fall under the fair use factors outlined above, know that using photographs of celebrities for compensation is a bit tricky. You can easily run into name, image, and likeness (NIL) rights, and would have to prove the rights were adequately granted to the company. It’s a very state/jurisdictional analysis. And, on an even deeper legal level, if memes are considered a form of communication, they are also subject to the limits placed on speech including the rights of others to privacy.

In summary: if you’re using a meme of a celebrity, make sure you have really analyzed whether or not your use falls within the parameters of fair use.

Do not use another company’s trademarks.

Black and white, don’t do it. 

A few years ago, you may remember when Kim Kardashian wore an all black Balenciaga (outfit? dress?) to the Met Gala. Some of the photos from that event were admittedly prime content for the curation of creative memes. Many of those memes were a gold mine of content for the “their brand v. our brand” type of marketing. 

That was, and will always be a recipe for disaster. What we tell all of our clients not to do is ever use another company’s logo within your memes to create a meme using someone else’s logo. You don’t have the defense of “parody”, you’re in a whole different ball game of infringing upon someone’s trademark rights. 

In summary,

Yes, you can use memes in marketing, but the key to your protection will be creativity. I don’t want you to read this post and then worry about going back and auditing your social media accounts. However, know that because you are likely using memes as a tongue in cheek way to market your business, you are arguably doing so for “commercial gain”. Just make sure you aren’t:

• Using something that’s already copyrighted;
• Interfering with the copyright holder’s ability to make money off their original work;
• Fall within the doctrine of fair use (you’ve created a transformative work, you aren’t creating something that interferes with the commercial gain of the original work, etc;
• You fall within the guidelines of parody (not defamation, etc);
• You are never using another company’s logo within your meme

When it comes to the legality of memes, fair use is the focal point. Creating a meme from copyrighted work (even if you’re just changing the caption) is generally considered transformative. It always pays (sometimes, more literally than figuratively) to be original in your creativity. Using memes in online marketing is a fantastic example of how sometimes, simply knowing the legal parameters at play will open doors for your business.