ADventures in Law

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Some of my favorite requests come from brands that want to dive into a cultural moment and stop to ask their lawyers for advice. The week leading up to the “Barbie” premiere was so much fun (and check out Sarah’s “Barbie” blog <a href="https://www.adventures-in-law.com/blogs/consumers-know-it-really-is-a-barbie-world/">here</a>). Everyone wanted to post about “Barbie.” (Oddly, I got zero calls about “Oppenheimer.”) Another really fun moment was right after the “White Lotus” season 2 finale dropped and everyone wanted to use a <a href="https://www.youtube.com/watch?v=Sbt-N9IOPfc">Tanya meme</a>. (The bummer was that I was behind in my watching and so it was a huge spoiler!) I am surprised I have not been deluged with calls over the use of the newest <a href="https://www.youtube.com/shorts/BRuXV-uPbyM">Ryan Gosling meme</a> of his absolute shock at winning a Critics Choice Award for “I’m Just Ken.” Indeed, even if you are a mega box office star, beating out Billie Eilish and Dua Lipa has to be unexpected.

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We hate being buzzkills, particularly for something fun and trending. But use of memes by brands is risky. There can be multiple intellectual property (IP) issues. The photographer or videographer has a copyright in the images. Or the rights might have been assigned exclusively to a third party like a studio. While any re-poster can face IP issues, as a practical matter, a large brand using a meme on its social pages looks like a better target. Separately, any person in a meme likely has a right-of-publicity interest in not having their likeness used for commercial use without permission. There has been litigation over use of memes by brands, but those cases have been fairly few and far between. (<a href="https://casetext.com/case/grumpy-cat-ltd-v-grenade-beverage-llc">The fact that Grumpy Cat sued and won is a classic</a>.) So, when your marketers are pushing their in-house lawyers to tell them what the “real” risk is, we go through certain factors — for example, does the meme directly or at least pretty implicitly advocate use or purchase of a product, or is it just cool social commentary? Does the subject of the meme engage in paid promotional relationships, a la “Barbie,” or does a celebrity in a meme have a partnership with a competing brand?&nbsp;Is the brand sharing a meme in a limited way and in line with the platform’s own rules? Really milking a trend or pulling a meme from the social world to the real world (e.g., print or even your website) increases the risk. But at the end of the day, of course, our job is to clearly present the risks and the best-informed guess as to the likely magnitude of the practical risk; the business then weighs this and decides. &nbsp;

Well, I have a better idea. I love nothing more than creative compelling marketing that is risk-free. It is a rare and beautiful thing. Becoming the meme is the real marketing feat. And this is not meant in a <a href="https://i.pinimg.com/originals/83/57/f8/8357f86b7784c60b5f7377e6e7c5bd5c.gif">Matthew McConaughey metaphysical sense</a> but in the very real sense of when marketing itself becomes a cultural phenomenon. A great example of this is the college bowl promotion Kellogg’s (now Kellanova) did with the Pop-Tarts Bowl. You can read all about it in the <a href="https://www.nytimes.com/2024/01/06/style/pop-tarts-mayo-bowl.html">New York Times article</a>, but basically there was a giant strawberry Pop-Tart mascot who at the end of the game appeared on top of a giant toaster. Said mascot jumped into the toaster and emerged minutes later in the form of a giant real toasted strawberry Pop-Tart, which was presented to the winning team. It was amazing and most definitely an awesome and impactful real-time promotion. But the <a href="https://www.buzzfeed.com/mjs538/the-pop-tart-bowl-reactions">memes</a> that came shortly after are priceless.

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A similar college bowl sponsorship involved Duke’s mayonnaise throwing a giant vat of mayo on the winning coach — like what happens with Gatorade or champagne but decidedly more viscous. So ick (says the person who probably loves mayo more than anyone else does), but still meme-worthy. It won’t happen every day, but let’s challenge our marketing colleagues and clients to be the meme … become the meme — because going viral is decidedly preferred to receiving a cease and desist letter. Just some food for thought. But also, wouldn’t a hot strawberry Pop-Tart hit the spot about now?

What do you Meme I can Reduce my Risks of Re-Posting Trending Content on my Brand Site?