Promoting products or events through social media platforms presents a formidable challenge, particularly for social media managers operating within limited budgets. Amidst this challenge, memes emerge as a budget-friendly approach to skilfully communicate messages. Memes have a unique ability to cut through the noise of social media and resonate with people, making them a valuable tool for social media campaigns. Yet, even though memes might seem like mere 'humorous images' circulating freely in the digital realm, it's vital to recognise that Intellectual Property laws still apply to them. Grasping the legal ramifications is paramount for social media managers, to safeguard them from potential complications.
Two Types of Memes
When it comes to using memes for content promotion, there are two types to consider: Owned/Shared Memes and Third-Party Memes.
Owned/Shared Memes are those created by the marketing department, where they own or share the intellectual property (IP) rights to the meme. (e.g., look at the recent Barbie film campaign with Oppenheimer aka ‘Barbenheimer’ – though I assume there is buy-in and potentially cross-licencing from both studios to exploit the hype as the campaigns of each film are incredibly well coordinated)
Third-Party Memes are memes that the marketing department does not own the IP rights to. They tend to be more commonly used because of the social currency they hold (be it an image or video clip) which helps propel or colour a message the brand is trying to tell.
The Risks of Third-Party Memes
While Third-Party Memes can be effective, they come with potential legal risks, especially when they include copyrighted images or videos without the owner's permission (breach of copyright).
There is a quiet social understanding (not a legal one!) that memes co-opted or employed by other brands (as exemplified in this Twitter post) don't encroach upon or contest the commercial rights of the intellectual property (IP) owner. Instead, these memes function as custodians of the IP owner's copyrighted creation within the social fabric. However, the line between acceptable use and infringement is exceedingly delicate. This balance hinges on the intentions behind meme usage and the identities of both the meme users and the IP holders. Understandably, the owners of intellectual property are unlikely to litigate against a 14-year-old sharing a meme on Twitter, especially when compared to pursuing legal action against a business worth over £100M (*Cough* Burnley).
For absolute clarity, there isn't a "de minimis" principle that grants free rein in using someone else's IP, suggesting that using even 10 seconds or less of a song or video clip can potentially trigger legal consequences. While "Fair Dealing" offers some defence, it must align meticulously with specific exemptions pertaining to using another individual's intellectual property assets. These exemptions, in essence, do not undermine IP owners' exploitation of their assets or grant third parties the ability to profit from those assets. Hence, the law shows leniency towards certain scenarios, as outlined in s30 and s30A of the Copyright, Design and Patents Act 1988. This leniency extends to instances like parody or satire (under s30A), where the use doesn't compete with the original IP but rather employs it as a reference to convey a distinct point.
Burnley FC and the Memes
Recently, Burnley FC used memes to announce player transfers in a fun and attention-grabbing way. These posts, while undeniably cringe-worthy, have managed to spark considerable engagement. However, their unconventional approach has also cast a spotlight on potential copyright infringement concerns. The excitement of bringing new players is great and follows a recent tradition of cringey/bad-funny player announcements (*cough* Southampton and Besiktas *cough* but note, these examples fall into the Owned/Shared Meme category! Burnley sadly does not).
The first post, featuring Zeki Amdouni's transfer into the club, bears an uncanny resemblance to a hostage video, incorporating a scene from the Teletubbies. This post has garnered an impressive 11.4 million views (as of the article's publication).
Similarly, the second post—announcing James Trafford's transition to the club—captures him in a somewhat embarrassed pose, utilising a scene from Back to the Future. This post, too, has been impactful, racking up 1.4 million views (as of the article's date).
The gravity of the situation emerges when considering the two posts featuring content from the Teletubbies (owned by BBC) and Back to the Future (owned by Robert Zemeckis and Bob Gale). These posts strategically amplify Burnley's presence (valued at +£150M) as a prominent Premier League team across the expansive web landscape. This strategic propagation potentially yields indirect commercial advantages. Yet, here lies the core issue: Burnley, as a third party, harnesses the intellectual property (IP) belonging to others to communicate a message about player acquisitions or self-promotion. To be explicit, this usage constitutes a blatant breach of copyright.
Consequently, Burnley becomes susceptible to legal repercussions, including potential damages payable to the BBC, or Robert Zemeckis and Bob Gale. In tandem with such repercussions, the imperative action would be to promptly remove the contested content from Burnley's social media platforms.
On a theoretical note, there is a possibility that Burnley has run afoul of the terms stipulated by Twitter (or "X") and Instagram. By employing intellectual property on platforms where they lack rights or licensing for usage, the risk emerges of having Burnley's business account suspended as a consequence of these transgressions.
Importance of Compliance
Although the chances of account suspension and receiving a cease-and-desist letter are slim, the consequences could be severe. Social media managers and marketing managers must exercise caution and obtain proper authorisation before using Third-Party IP in promotional content. In-house counsel's guidance and client buy-in can also be valuable in avoiding legal complications.
In conclusion, memes can be a powerful tool for content promotion, but social media managers must tread carefully to avoid legal risks. Unsanctioned use of Third-Party IP can lead to copyright infringement claims, potential damages, and even account suspension. Being aware of these risks and obtaining proper permissions is essential for successful and compliant social media campaigns. Additionally, compliance with online advertising regulations and other relevant regulatory considerations (I.e., Premier League/FA regulations that affect football clubs) is equally vital to ensure a smooth and risk-free promotion of businesses or organisations.
If you require assistance or advice with any of the issues mentioned in this article or any other commercial matters, our dedicated team is ready to support you.