DISCLAIMER: This blog is based on research and personal experience. AgencySparks does not intend to provide any legal guidance. For legal advice concerning this topic, contact a legal advisor.

Memes go viral in seconds. Of all the forms of media, videos are shared the most. Photos can reach thousands of impressions. In a world where communication is visual, how is a marketer supposed to resist sharing someone else’s intellectual property?

GIFS, videos, and images are easily communicated, shared, and remembered, so they influence marketing content and campaigns. Though the benefits of these visual tools are significant, marketers must be cautious. Individuals are at liberty to share pictures that may not be public domain on their social media accounts, but the rules are different for businesses.

A basic guide to avoid breaking copyright laws are:

• Read
• Ask
• Familiarize

When advertising on social media accounts, be sure to read the Terms & Conditions. Each platform spells out the rules and consequences for copyright infringement.

If there is ever any hesitation about the use of an image, ask. It does not hurt to email the content creator/owner, more times than not, the owner will grant permission.

Become familiar with copyright basics. There is no need to attend law school or pay an attorney’s fees, but it is important to have a watchful eye on content in order to avoid any legal problems.

What are the Copyright Basics?

• Copyright is an automatic designation given to “fixed forms” of creative work (work may include literary, performing and visual arts, digital content, motion pictures, and images).
• Legally, the symbol is no longer required. No one is permitted to use any work posted on the internet - image, blog, video - without explicit permission.
• Content creators can register work with the U.S. Copyright Office within 90 days of publication in order to sue for copyright infringement.

As a marketer, sharing popular memes, funny images, or relatable videos is tempting and can be effective. Use these methods to gain more reach, but know the “fair use” of items to avoid legal trouble.

What is fair use?

Fair use can be somewhat murky since it is open to interpretation. Media may be shared or repurposed for commentary (including satire and parody), criticism, reporting, or teaching. Creating a version of the original is acceptable if it does not lead to monetary revenue or economically compete with the original.

Factors where fair use, as described by the Legal Information Institute, are permissible when considering:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit or 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.

So what about stock images, memes, and GIFS?

Stock Images

Finding a photo on Google or on another social site does not make a picture public domain. Always know the licensing guidelines and if the picture is for personal or commercial use. Steer clear from potential licensing issues and search for free photos using these tools.

Memes in Marketing

Memes are popular concepts (ideas/pictures/audio/quotes/videos/hashtags) shared across the internet. They are frequently used socially but benefit as advertising tools as well. When used commercially, memes may violate intellectual property law.  

When a marketer uses a meme and is not the copyright owner, it must be fair use:

• The marketer creating or sharing the meme cannot make direct or indirect revenue.
• The marketer must not copy the original piece entirely.
• The created or shared meme cannot harm the brand or copyright holder.

A meme generally is an image that is used for comedic value in a different context than the original. This, if used non-commercially (for educational or satirical use), may be fair use. To avoid any potential legality concerns, make new memes or use them non-commercially. Using licensed images to create a meme may not seem appealing because instant recognition is lost. Sometimes this approach is better than violating a content creator’s copyright.

Realted: 4 Things You Should Know Before You Start Using Memes on Social Media

GIFS in Marketing

GIFS instantly portray emotions and relate to consumers, so it can be tempting to use them as eye-catching content.

GIFS may be considered fair use because they provide “commentary, criticism, or parody.” Watching a GIF does not undermine the value or market of the original piece, making it “transformative.” For example, a GIF of Lord of the Rings would not incorporate the entire trilogy.

As part of the Digital Millennium Copyright Act social networks are protected from infringement as long as they have a system to report and remove unlicensed content.

To be safe, do not post GIFS for commercial use, always get written releases (from the subjects, copyright holders), link to the parent site, or create an original GIF.

So what is okay?

• Is it okay for a designer to create a custom title generator inspired by a movie title font?
• Is it legal for an agency to design different versions of a beverage product?

We are not lawyers and cannot provide a definitive answer to these questions, but always ask yourself questions before you act and, when in doubt, ask a legal counsel.

Caution and precision are important. At the end of the day, a few more impressions do not outweigh the cost of a copyright infringement. Avoid careless mistakes and do the research or ask for permission before posting.