So meme marketing is probably illegal

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 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?

It’s pretty damn unlikely that an everyday human’s gonna get sued for posting a meme. Most popular memes are used thousands, if not millions of times—that stock image service or photographer would grab too much bad press by legally pursuing some rando on Twitter.

But if you’re a company? That presumably wants to make money? And you’re using copyrighted images in your marketing materials (which, yes, organic social content falls under marketing materials)? That’s a whole different story.

The most common argument for using memes 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. And because most memes toss text overtop an image, they’re barely changed from the original, bringing #3 into question.

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. While it’s not nearly as clean cut with organic content, you bet a motivated party could build a strong argument quickly.

Are you gonna get sued for using memes?

Honestly? Probably not. It’s expensive for copyright owners to pursue damages, and the half-life of social content gives your meme 15 minutes of fame at best. But 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 $12.