Sometimes I feel like the social media fun police. I don’t mean to be a downer. I just honestly worry about our industry at times. We have the best jobs in the world, but it sure seems like we love endangering the progress to legitimize social media strategy with some quick dopamine hits.

Let’s get into the issue, though. We’ll hit on

• Why meme marketing isn’t legal for brands

• A 231-slide deck every social marketers should read

• My revamped business to help you get better at LinkedIn!

—Jack Appleby

Why meme marketing is illegal for brands

I wonder if Grumpy Cat grinned after that $710,000 copyright infringement verdict?

Our favorite frowning feline grew from a meme to a full business built around his likeness. Not just basic merch, either—book deals, speaking appearances, and even Grumpacino, a license-deal with a beverage company that overstepped their bounds & lost to Grumpy Cat in court.

Now, you’re a marketer, innocently using memes in your social calendar—very different that blatantly profiting off a meme… or is it…

Let’s talk about why you shouldn’t use copyrighted memes in marketing, and why it probably isn’t even legal.

What is meme marketing?

For those that don’t internet so hard, a meme is an “image, video, piece of text, etc., typically humorous in nature, that is copied and spread rapidly by internet users, often with slight variations.” Frequent tweeters might prefer Urban Dictionary’s definition, though: “The cure for depression.”

The key word there is copied. Most memes originate from copyrighted material, like Distracted Boyfriend. I know you’ve seen a million adaptations on this one, but the underlying photo comes from Shutterstock via photographer Antonio Guillem, who says the meme hasn’t turned into “any kind of economic profit because most of the images haven’t been sold on the microstock agencies.” Surprise, surprise—people don’t license his image, rather just googling “distracted boyfriend” with a right-click, save as. But I’m getting ahead of myself.

Meme marketing is just that—using this ridiculousness in your marketing content. It’s become incredibly popular among smaller brands where creative resources are few and social-teams-of-one have to pump out bunches of content efficiently. Take a meme, create a message that’s relevant to your followers, and BAM—content! And hey, it’s fun! Certainly engaging. I always laugh when Guy Explaining pops in my feed. But uh…

Is meme marketing legal?

If your meme uses legally licensed images, paid celebrity appearances, or original content that doesn’t infringe on anyone’s copyright, you’re golden! You’re above board, you’re making legal content, meme to your heart’s content!

If your meme uses copyrighted images or celebrities you have no relationship with? You’re putting your brand at risk of getting sued, because it’s not really legal.

No, memes are usually not fair use

The most common argument for using memes featuring celebrities or copyrighted images in marketing: fair use, a defense against copyright infringement. Per Westlaw Today, the four factors debated in fair uses cases are:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes

2. the nature of the copyrighted work

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole

4. the effect of the use upon the potential market for or value of the copyrighted work.

Each point is contextual to individual cases, but two outta four raise questions in meme marketing.

For point #1: If you’re a for-profit business, organic social is certainly a commercial endeavor. Every Instagram Reel, Tweet, and TikTok are promotions for a for-profit business. They’re not exempt because they’re organic social posts and not ads—they’re coming from a company’s official page and published by company employees in an effort to promote the company.

For point #3: most memes toss text overtop a copyrighted image, barely changing anything at all. There’s not enough creative liberty being taken remotely consider memes a unique work.

But maybe more importantly, there’s actually some legal precedent from, of all memes, Pepe The Frog.

When Pepe became an unofficial mascot for the alt-right, InfoWars turned him into a poster they sold on their website. Original artist Matt Furie quickly sued, with both parties filing a motion for summary judgment. While this case is similar to Grumpy Cat’s likeness suit, an important point came when InfoWars’ fair use argument was denied:

“the court rejected Infowars’s argument that the “meme-ification” of Pepe the Frog destroyed or diminished Furie’s copyright interest in the character, noting that no matter how popular a character may become, its copyright owner is still entitled to guard against unauthorized uses.“

That means yes, the original creator of the underlying photo/image/video can’t pass as fair use when challenged by the original copyright owner.

I’m not a lawyer, but that’s easily enough to scare me into never using someone else’s copyrighted material, even memed, in my marketing.

Is meme marketing different for paid vs. organic social?

No, other than it’s even dumber to use memes in your paid advertising. That’d be blatantly provable—you’re using copyrighted work to directly benefit your bottom line. Lawyers will easily wreck you on that one.

Are you gonna get sued for using memes?

It’s happening more and more. It’s one reason Rob Freund has become one of my favorite Twitter follows. He’s a lawyer for brands, agencies, and creators who tweets about the legal side of social media and ecommerce. A notable portion of his content comes from copyright suits.

It’s happening, folks. You could put your brand at risk of being sued over a tweet with a handful of likes.

If you’re working in social, you shouldn’t make a single piece of content that’s even questionably illegal. This is one of those “that’s what the money is for!” moments. We’re paid to be social media professionals, and being creative while being brand safe is part of the job.

And yes, I paid to used Distracted Boyfriend as my preview image. It cost me $14.50.

I wanna help you learn to be yourself on LinkedIn

Writing about my job on LinkedIn changed my career. My jobs at R/GA, Twitch, and Morning Brew? All came in the DMs from me writing about my work. When I worked with Spotify? One of their product managers read my threads and reached out to me to work together.

Now, I wanna pay it forward & help you start sharing how you think on LinkedIn.

Introducing Break An Egg 🐣, my try at building the world’s most inexpensive career development tool on the market.

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• 30 LinkedIn prompts designed to mine your experience for content

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You can sign up right here. Cheaper than a latte. I’m keeping it at this $5/month mark for anyone who signs up until Black Friday, then it’ll go up a bit (but you’ll be grandfathered into your original price). Can’t wait to help ya break some eggs!

Social Cues

Snapchat is a minefield for teen friendships (The Cut). And I thought the MySpace Top 8 was tough back in the day. What kids go through today in digital friendship expectations & cyberbullying is wild.

Matthew Stasoff’s Social Signals 2024_v1 (Google Slides). Friend of the newsletter and Group Social Strategy Director Matthew Stasoff dropped a 231-slide deck covering the current state of social. It’s dense, it’s smart, and I guarantee you’ll steal a slide for the set-up of your next presentation.

The 9 best unexpected brand collabs of 2024 so far (Adweek). Lists like these are so fun to peruse. Who doesn’t love a weird brand collab?