The internet and social media offer incredible marketing opportunities for businesses, but proceed with caution to avoid legal landmines! Here are a few tips for navigating potential IP issues with memes, hashtags, and emojis.
Memes
For those who don’t know, memes are pictures, videos, or other content (often combined with a catchphrase or other text) that go viral on the internet and social media. Memes frequently feature cats and can be hilarious…but who owns them? And can you create your own using someone else’s picture or video?
Memes intersect with copyright and privacy law. Most memes involve images or videos, which can be created by the meme creator, but are usually created by someone else — for example, many memes use still images from movies, which are owned by the film studio or production company. Under copyright law, only the owner of an image has the right to reproduce, modify, or distribute the image, and the owner’s permission is required to use it.
However, within copyright law is the doctrine of “fair use.” Fair use allows use of a copyrighted work in a new work, without the owner’s permission, in certain situations. Whether use of a copyrighted work is a “fair use” requires case-by-case analysis, but parody, criticism, and commentary are usually deemed fair use — and most memes are usually created as parodies or other social commentary.
Even if a meme or social media post is intended to provide social commentary, other important considerations in determining fair use are the amount of the original copyrighted work used, the effect of the use on the market for or value of the copyrighted work (which can vary based on the perspective of the original creator and the meme author), and whether the use is commercial in nature. For companies creating memes to promote their products or for commercial benefit, the fair use defense may not apply. Let’s say it snowed here in Colorado last night and Betty’s Hardware in Denver took a screenshot from the Game of Thrones introduction and added a caption warning that “winter is coming, so buy a snow shovel from Betty’s Hardware!” While it may be a funny meme, Betty’s Hardware’s use of the Game of Thrones image may be considered a substantial commercial use and not protected by the doctrine of fair use.
Even giving credit to the original creator of the image won’t necessarily protect you from legal action or controversy. Many image repositories aggressively protect the materials in their catalogues. If someone makes a meme from an image owned by Getty Images, Getty may assert copyright infringement and demand a licensing fee. It doesn’t matter if the meme creator attributes the original creator or Getty Images.
Privacy law also may impact memes that use images or videos of people, especially if they are not public figures. Videos or memes of clumsy dancers may be funny, but not to the person who suddenly has viral fame because he or she can’t dance.
Hashtags – The Good, The Bad and The Ugly
There have been very few court cases involving memes, which isn’t surprising — it can take several years for cases like these to make their way through the court system as it almost always takes some time to apply legal principles to new technological and social developments. However, courts are beginning to render decisions on the legal implications of hashtag use.
Hashtags can be an effective branding tool and a fun way to optimize social media recognition and provide information to consumers. Most social media users are savvy enough to recognize that tags are informative, but if you plan to use hashtags in your posts, you need to be wary.
One recent court decision involved Align, the company that makes Invisalign, and Strauss, a company that makes a protective sleeve that goes over the scanner used by dentists to map out a patient’s Invisalign system.
Strauss posted a picture of its sleeve and the Invisalign system scanner on social media. They tagged both Invisalign and Itero. Align sued Strauss, claiming that Strauss’s use of the hashtags and images implied affiliation, association with or approval by Align.
Strauss claimed it just used the hashtags to refer to its product’s compatibility with Align’s system. The court disagreed and determined that Strauss was trying to piggyback on Align’s success and name. Use hashtags with caution, especially when tempted to tag anything other than your own company/product or using a tag to make claims about your product. Things may have gone differently for Strauss had it used “#invisaligncompatible”-type tags rather than simply using Align’s trademarks in the tags.
Emojis – Learn the Language First
Emojis are picture characters or icons used to express ideas or emotions. Emojis have essentially evolved into their own language and can be a powerful and efficient way to communicate. However, before you use this new language to express yourself, you need to understand its nuances.
Using emojis can create legal misunderstandings or controversies in business communications and on social media. For instance, if a customer sends a proposal to purchase product and you respond with a “thumbs-up” emoji or a “happy face” emoji, have you just accepted the proposal and created a binding contract? What if you respond to a competitor’s recent press release on Twitter with a “smirking” emoji? Have you just insulted the competitor or accused her of making a false statement? Perhaps you post a press release about your own product on Instagram and include a “championship trophy” emoji in the caption. Does the emoji imply that your own product is award-winning, industry-leading, or otherwise denigrate your competitors?
One gut check is to translate the emoji you want to use into the corresponding words and test potential meanings. Does it convey the meaning you intend or is it ambiguous enough that could be misinterpreted?
Again, the courts have not yet tackled interpretations of emojis regularly or consistently, but be cautious and aware when using them in the business arena.
Use Social Media Strategically
There are a few things you can do if you find your images used in a meme, your company tagged in a way you’d rather not be associated with, or your social media post commented on with some ambiguous emojis.
First, evaluate the harm to your business. If the meme, hashtag, or emoji is harmful or untrue, you may want to take action.
Second, consider what action you want to take. You could send a demand letter insisting the post be taken down. Another effective response, however, could be using a cheeky meme, hashtag or emoji of your own.
Companies are regularly calling each other out on social media, or “clapping back” at each other, rather than sending lengthy demand letters full of legalese. For example, several fast food chains launched a chicken sandwich “war” on Twitter in 2019. Chick-Fil-A, which has long dominated the chicken sandwich market, teased Popeye’s about its newly-launched chicken sandwich by touting its own sandwich on Twitter as the “original.” Popeye’s tweeted back a cheeky “y’all good?” And when Chick-Fil-A, which is closed on Sundays, tweeted “Is there anything better than enjoying one of our Spicy Chicken Sandwiches on a Friday afternoon?” Wendy’s answered by tweeting “Yes, enjoying one of ours on a Sunday.” As a result of this Twitter war, all of the fast food companies have created enormous buzz for their products.