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Memes and Marketing; Use With Caution

In light of the popularity and rapid viral spread of various Internet memes, it’s only natural that companies would seek to tap into this powerful modern spin on traditional “word of mouth marketing” by incorporating well-known memes into their advertising materials. In light of some thorny intellectual property issues surrounding the commercial use of memes, however, marketers are well-advised to take a cautious approach toward the use of memes.

Scott J. Slavick, a shareholder at the intellectual property firm Brinks Hofer Gilson & Lione has penned a piece for Law.com that sums up the memes-as-marketing dilemma from a legal perspective quite nicely, covering a complicated topic in simple, layman’s terms.

For example, with respect to ‘fair use’ arguments that companies might assume they can rely on when making use of memes in a commercial context, Slavick notes that “[w]hen for-profit enterprises use copyrighted materials, courts typically deny the company the fair use defense.”

Slavick continues:

The courts usually hold that the company should have legally licensed the copyrighted materials and thereby financially compensated the work’s author. If the meme were to be posted on your company’s corporate Facebook page, for example, a court would most likely hold the company liable for copyright infringement, because of the purpose and character of the use and the fact that the company is a for-profit enterprise.

Whether you are currently making use of memes in your marketing, are considering doing so, or are just interested in the ramifications for whatever reason, I highly recommend Slavick’s article as a very readable, clear and commonsense guide. You can read the entire piece here.