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The Copyright Conundrum of Memes in Social Advertising
Posted on October 28th 2013
Memes can be a social marketer's dream come true. Not only is their instant recognizability easily leveraged to create a connection between the consumer and the business's brand, but they are also free. At least, that is what many people seem to believe. Quite a few small to mid-size business use memes in their social advertising – you'll typically see this on Facebook, where they will post a picture of 'Grumpy Cat' or the 'Most Interesting Man in the World' with superimposed text connecting the meme to the business. The problem with this, however, is that by using these to memes to advertise, you are potentially violating intellectual property protections.
Many famous memes have trademark and copyright protection
Many of the creators of the original works that eventually spawn memes are rightly protective of their intellectual property. “Grumpy Cat Inc. Corp. Ohio” registered Grumpy Cat with the US Patent and Trademark Office back in January, and has slowly begun to build their business around the licensing of the Grumpy Cat image. The creators of Nyan Cat and Keyboard Cat have actually sued Warner Brothers over unauthorized use of their copyrighted and trademarked property. Before I came to run MyCorp I was an intellectual property lawyer, and let me tell you one of the worse positions to be in is at the defending end of an IP lawsuit.
Advertising is not protected by fair use
You may feel inclined to argue that Imgur, Reddit, and Tumblr are awash with memes, and no one is suing the people posting them. In fact, Imgur recently created and hosts its own Meme Generator, allowing users to utilize some of the more famous static images to create their own memes. Luckily for these sites and their users, most memes are arguably protected by fair use. The limitations on exclusive rights sets out four criteria to judge whether or not the use of the work is a fair use – the purpose and character of the use (essentially, was it used for profit), the nature of the copyright work, the amount of the work used in this case in relation to the whole work, and the use's effect upon the potential market for, or value of, the copyrighted work. Memes are generally not used for profit, and the use of a meme normally will not negatively impact its value. But, if you use a meme to advertise your business, even through a social channel, that throws a wrench into any fair use argument you can make.
Can a business use memes?
While it is unlikely that the owner of a copyright will come after you if you use their meme, gambling with intellectual property law is risky, and can be very costly. That leaves you with two options. The first is that you make your own memes, using your own photos or non-copyrighted images, ensuring that you do not infringe on anyone's intellectual property rights. The problem with this is that homemade memes often feel forced. It is really difficult to mimic the effect that viral content has because you can't recreate that instant recognizability and connection. The second option is to post memes with non-commercial intent. So you make a funny meme, post it on Facebook, and sit back and enjoy the brief boost in your reach. Facebook, however, isn't a big fan of that tactic, and announced it will punish pages that post low-quality content – they even specifically call memes low-quality. Plus, even if you aren't using this meme to directly advertise your business, just posting it can arguably be seen as a form of marketing. So the answer to the above question is pretty much a 'No.'
It can be really difficult to create a good content strategy for your social marketing campaign, and memes are an easy way to increase engagement. Keep in mind, however, that viral content always has a creator and that creator is not going to be happy if everyone else is profiting off of their work. But even if you felt daring and decided to flaunt copyright law, assuming that they will never come after you, memes could hinder, rather than help, your campaign. Not only could they harm your EdgeRank, but it is also generally accepted that memes just don't work well as marketing content. Avoid the possible legal troubles and just cut memes out of your content strategy entirely. Your metrics may dip for a little while, but good content will do more for your business than a cheap meme parody ever could.
(copyright / shutterstock)