3 Rules for Brands Sharing Memes
January 24, 2017
By Chris Warren
What must have initially seemed like a social media marketing coup ended up garnering attention for all the wrong reasons. In 2014, a drugstore chain in New York posted a paparazzi photo to its Facebook and Twitter accounts of an actress carrying the store's shopping bags. To be sure, the brand's social media posts got a lot of attention, though not necessarily in the way the company had hoped. The actress filed a $6 million lawsuit against company, claiming among other things that state laws protecting the use of her likeness for commercial purposes had been violated. She eventually withdrew her lawsuit, though her lawyer told the media that the drugstore chain had made a contribution to a charitable foundation to which the actress had close ties.
The episode is something of a cautionary tale for marketers who are increasingly eager to share animated GIFs, images, and popular memes on social media in an effort to generate attention and engagement with their brands and products. In the majority of instances, using copyrighted photos or movie clips on Facebook or Twitter won't land a company in court. But there are legitimate and largely unsettled legal questions that marketers should consider before tweeting and posting.
Evan Gourvitz, intellectual property (IP) litigation counsel at Ropes & Gray LLP in New York City, says it's important for marketers to remember two facts: laws governing IP and copyright apply to social media in the same way as they do in any other realm, and there's absolutely no avoiding the reality that individuals all around the globe are continuously sharing GIFs and memes and images of celebrities, something which may be okay for those individuals but is not necessarily okay for brands. "The fact that a generic person is sharing a given meme or GIF or image for his or her personal entertainment is not the same thing as a multinational, for-profit company sharing the same information for profit," he says. "While both might be infringing or non-infringing [on a copyright], the calculus is different in terms of whether an intellectual property owner will choose to go after that use."
The federal Copyright Act governs the ownership and permissible use of copyrighted works and, in its purist sense, lays out rules that essentially say it's the copyright owner's exclusive right to publish or prepare derivative works based on a protected work. But the copyright laws also provide exceptions for what is termed "fair use" of an original work, which allows for a number of uses, including parody of the original work and use of it in a way that doesn't impact the marketplace for, or the value of, the original creation. Determination of whether there has been infringement can also depend on how much of the copyrighted material has been taken for another purpose — in other words, it matters whether someone is using a clip from a TV show or movie or an entire episode or film. Beyond copyrighted material, state laws like the one the actress cited in New York can apply when photos of celebrities are used for commercial purposes.
There's the law in its abstract form, and then there's the real world. Indeed, the sheer volume of copyrighted material being shared without permission by individuals and marketers is massive and the law simply can't keep up. "It's a bloodbath of infringement out theretoday that nobody knows how to handle," says Douglas Wood, who serves as ANA's general counsel and is a senior partner at Reed Smith LLP. Wood says he is constantly requesting that images and clips be pulled off social media for his clients. "You win almost every time you do that because you have the rights on your side," he says. "But it pops up again next week and it becomes a Whack-a-Mole game. You don't win a Whack-a-Mole game. The mole always wins."
It's important to make a deliberate and thoughtful decision about what copyrighted material to use, if any, on social media.
Which is not to say that Wood encourages marketers to simply ignore copyright laws altogether. "We say to clients, 'I can't tell you go and do something that is infringement.' What I will say is, 'If you do it, it's probably a manageable risk and you can react and decide what you're going to do in reaction to an objection,'" he says. "I'm not going to tell you it's without risk or appropriate because nobody knows, there's no definite rule. All I can tell a client is that there are risks and you can decide to take the risks."
The idea that it's important to make a deliberate and thoughtful decision about what copyrighted material to use, if any, on social media is a good first step for any marketer. Here are some other best practices.
- Have a plan. Combine a lack of legal clarity with a strong pull to use social media more in marketing efforts and you get the need for some planning about how to proceed. Robert Newman, an IP partner in Winston & Strawn's Advertising, Marketing, and Privacy Law practice in Chicago, helps brands develop social media guidelines that can be used by a company's creatives, lawyers, and business executives. "We use specific examples in the guidelines and categorize the risk as green, red, and yellow," he says. Usually, the high-risk and low-risk scenarios are pretty clear. "In the middle, it depends on the brand, their voice, or nature of the company," he says. "A social media policy for one company looks different from that of another." Because brands see a lot of opportunity to engage with customers on social media around big events — like the Super Bowl or the Oscars — Newman says companies set up war rooms that include marketers, lawyers, and others who can make quick judgment calls about the law and a brand's risk tolerance to guide what they tweet and share during an event.
- Be careful not to imply an endorsement. As the New York drugstore chain discovered the hard way, using a photograph or video of a celebrity in a way that implies an endorsement of a brand can cause real problems. In fact, in the social media guidelines Newman's law firm puts together, that is considered a red light activity (i.e., decidedly not a risk-free idea). "Think about the highest risk. It's if you post about a celebrity or have a photo of them that implies an affiliation with the celebrity that doesn't exist," he says. By contrast, the risk is much lower when a celebrity tweets at or references a brand, or when a brand contributes to a social media conversation during a big event like the Oscars.
- Explore other possibilities. Having a risk-versus-reward conversation about using copyrighted material or anything depicting celebrities is smart. But the conclusion to those conversations doesn't have to always be to avoid risk altogether or rolling the dice and hoping nothing bad comes of it. This is especially true with celebrities. "There's always the possibility of licensing or getting permission from a celebrity. There is always the possibility of some kind of partnership," Gourvitz says. "You can always reach out and try to build some kind of alliance."
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