• ashlie major

The trend of using memes in advertising is cool, but is it okay?

There has been an astronomical increase in using memes and GIFs as a form of advertising. While some companies use their own content to create short memorable clips, others use the memes and gifs that have grown to become viral through modes of social media (i.e. not their work).

A meme can be defined as a cultural item in the form of an image, video, or phrase that is spread through social media and often altered in a creative or humorous way. GIFs, an abbreviation for “Graphic Interchange Format,” are classified as a type of meme but may contain still or moving images to create short animations. What makes memes so popular is its ability to convey feelings, attitudes, concepts, and behavior faster and more effectively than words can convey.

The popularity of memes has not gone unnoticed by businesses. Companies are capitalizing on the success of the trending meme culture. In fact, it has created a new subset of marketing and advertising called Viral Marketing or Meme Marketing. See some successful examples of Meme Marketing below:

Figure 1. Netflix uses a meme to promote their movie Birdbox using the original content in a comical way.
Figure 1. Netflix uses a meme to promote their movie Birdbox using the original content in a comical way.

Figure 2. BarkBox uses dog-related memes to grow their social media audience.
Figure 2. BarkBox uses dog-related memes to grow their social media audience.

Figure 3. HipChat increased its search traffic by 300 percent after the billboard's appearance.
Figure 3. HipChat increased its search traffic by 300 percent after the billboard's appearance.

Figure 4. Nurx uses an image from the movie "Mean Girls" to sell birth control.
Figure 4. Nurx uses an image from the movie "Mean Girls" to sell birth control.

But, are these companies using memes lawfully in their marketing and advertising efforts? Yes. Well, I think so. Memes have yet to be litigated heavily in the courts, so there is currently no precedent on the legalities of meme ownership or the use of memes to sell and promote goods or services. However, the doctrine of fair use hints to the creation and use of memes being okay.

First, before we can ascertain whether using a meme in marketing is “fair use,” we must evaluate whether a meme is copyrighted in the first place.

Article I, Section 8, Clause 8 of the United States Constitution gives Congress the power “[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Through this clause, Congress enacted legislation (now amended, 17 U.S.C. Copyright Act of 1976) granting and governing copyrights and copyright protections. The Copyright Act fulfills the core purpose outline in the U.S. Constitution by granting authors a limited monopoly over their original works of authorship.

According to the Copyright Act, copyrighted works include “literary, musical, dramatic, and choreographic works, pantomimes, pictorial, graphic, or sculptural works, including. . . individual images of a motion picture or other audiovisual work.” Memes are considered “derivative works” which are defined in Section 101 as a work based upon one or more preexisting works. Some examples of derivative works include “a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” The categorization of memes as derivative works make sense as memes are usually composed of images and clips from motion pictures and other preexisting works. However, only the original author has the right to create derivative works; meaning that meme creators, unless they have ownership or have obtained the proper rights in the preexisting work, do not have a copyright in the meme.

Evidence suggests that although the creator of a meme may not have a copyright in their work, the meme itself may be composed of copyrighted elements to which the original author may have an infringement claim.

Now, there are some limits to which an author has a right to control original and derivative works. This is where the doctrine of “fair use” comes in. The fair use doctrine allows the public to use copyrighted materials without having permission from the copyright owner in certain circumstances. A fair use determination of a copyrighted work is not an infringement of copyrighted works and is considered necessary to fulfill copyright law’s purpose to promote the progress of science and useful arts.

Section 107 of the Copyright Act of 1976 outlines four nonexclusive factors which are to be weighed together to assess whether a particular use of a copyrighted work is fair. Those factors include:

  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; and

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

Taking into consideration these four factors, the use of memes in advertising is likely okay. Colleen McCroskey, in her article, thoroughly evaluates the legalities of the creation and use of memes using the Fair Use Doctrine. Under the fair-use doctrine, “a book reviewer may. . . quote from an original work in order to illustrate a point and substantiate criticisms,” [a]n artist can “employ copyrighted photographs in a new work that uses a fundamentally different artistic approach, aesthetic, and character from the original,” and a newspaper can “publish a copyrighted photograph in order to inform and entertain the newspaper’s readership about a news story.”

This ‘use’ sensibly extends to companies utilizing memes in their advertising and marketing strategies.

Then-District Court Judge Pierre N. Leval in her Harvard Law Review article, Toward a Fair Use Standard, critiqued the focus on the commerciality analysis to which many courts, including the Second Circuit Court of Appeals, have cited and followed—resulting in a fair use analysis more favorable to the meme marketing trend.

“Copyright is not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public.” - Pierre N. Leval

Though, the above analysis of the Pierre N. Leval article is not meant to discount the first or fourth factor, as they are the most important. Although the Second Circuit embraced Leval's analysis, it is subjected to an important caveat: "a fair use must not excessively damage the market for the original by providing the public with a substitute for that original work."

Bottom line is that the meme trend is not slowing down—it's growing. With growth in popularity comes the exploitation of such growth. Not only are companies successfully using memes to grow their sales and following, but consumers are equally pleased and entertained. So, keep on meme-ing on (until the courts tell you to stop).

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