If a picture is worth a thousand words, that makes a meme worth about 50 tweets. It’s therefore no surprise that so many companies are interested in leveraging memes in marketing. But as with all advertising, certain rules apply. One does not simply meme without knowing the law.
The referential nature of memes and the common inclusion of media owned by others tends to increase the risk of marketing via memes. On the other hand, a meme is not a monograph, and audiences (and courts) should understand that a meme is to be taken lightly.
In this article, we highlight some legal issues relevant to meme marketing, as well as some best practices that may help to lower the practical risks involved. Given the inherent risks in meme marketing, legal advice is highly recommended.
Don’t be tricked into thinking the viral nature of a meme is a permission to copy. Where memes are based on photos, songs, or videos made by others, your re-post of that content runs the risk of infringing the owner’s copyright. The fact that others have done it too is no defence.
To avoid an unwanted copyright claim:
- Use media that you create, that is in the public domain, or that you are licensed to use. Many websites, such as Wikimedia Commons, have databases of photos with creative commons licenses or other terms that allow them to be used in advertising.
- If you are dealing with a copyrighted work without a licence, you may be able to rely on a fair dealing exception as a defence, such as the parody or satire exception. However, even when an element of parody or satire is included, the overall use should be “fair”. For more on “fair dealing” see our article “From iTunes to the classroom — The Supreme Court of Canada cements fair dealing as a 'user’s right'”. Importantly, the use should be minimal and not compete with the original, such as a short clip of the whole, and the use should be in a temporary manner (e.g., a social media post rather than a product label).
Mentioning competitor trademarks in your social media posts is a risk/reward scenario. Comparative advertising can be effective, and legal, if the information is fair and accurate. However, the use of a third-party’s trademark in a manner that “depreciates the goodwill” of that mark can be actionable. In addition, any false or misleading claim may be considered unfair competition (among other things).
Even clever allusions to another company – without saying its name – could be considered unlawful when the third party’s mark (or allusion to it) appears on your product packaging.
If you are going to reference another brand:
- Be careful.
- Be fair and truthful.
- Don’t do it directly on the packaging, but limit yourself to advertising.
Social media terms of service
In addition to legal rules, each social media company has terms for how intellectual property rights are enforced and licensed on its platform. Sometimes these are strict, leading to “takedowns” of posts containing third-party media even where such use might arguably fall under a fair dealing exception. At other times, platforms explicitly allow users to re-post, alter, and add to content made by others in order to encourage dialogue and artistic expression.
As one example, at the time of writing, TikTok’s Terms of Service currently state that “[u]sers of the Services may… extract all or any portion of User Content created by another user to produce additional User Content, including collaborative User Content with other users, that combine and intersperse User Content generated by more than one user.”
In particular, look for terms like, whether by posting…:
- you warrant that you have the right to use any media in your post.
- you are waiving moral rights in any media you have created.
- users are licensing other users to copy the contents of their posts.
Remember that even if the terms give you permission to reference another person’s post, you do not necessarily have permission to copy the media in that post if it belongs to a third party.
Famous people have special rights that protect them from becoming an unwanted product ambassador. If your meme format features a celebrity:
- Avoid any suggestion of endorsement.
- Don’t reference public figures from your own industry, or any who are known to be a spokesperson for a competitor.
- Don’t target the same celebrity repeatedly, which may imply a connection that doesn’t exist.
Advertising law generally
In addition to the issues canvassed above, remember that memes are a form of advertising and have to follow all the rules that apply to regular ads:
- Make only accurate claims about the quality of your goods/services.
- Ensure testimonials are truthful.
- Avoid stereotypes.
- Don’t encourage people into dangerous situations.
- Be careful with children’s characters or references that might appeal your ad to kids.
A good meme can be potent advertising. So can a bad one. Following these best practices and reviewing how intellectual property rights are enforced and licensed on each media platform can help ensure your message stays online long enough for people to notice, and doesn’t lead to a complaint.