Marketing Briefing: Legal questions swirl as brands use more memes, trending creator sounds

Three years ago, marketers were starting to use more memes in marketing with some even venturing to hire CMOs — chief meme officers. Since then, the social landscape has changed with a further pivot-to-video and surge in organic content strategies thanks to the rise of TikTok that’s led more brands to use memes and viral sounds.

Doing so can be a murky venture for brands as some will use popular memes for their organic and paid content in ways similar to the average user — remixing an ad to feature a popular sound or meme from popular culture — to help their content go viral. While agency execs recommend clients license any sounds or memes used in content, some brands will go ahead without doing so. The legal ramifications could vary: some brands will fly under the radar, according to marketers and agency execs, while others will face legal challenges. 

For example, Activision reportedly sued creator Anthony Fantano aka NeedleTok for asking for compensation from the brand for using a sound that he created after it went viral. Initially, Fantano created the sound “it’s enough slices” but Activision used it to promote Crash Bandicoot. Fantano then reportedly asked Activision for compensation with the threat of legal action. Activision reportedly said it would take down the clip but was still met with the ask for compensation. Activision has instead sued first and asked a judge to clarify that the company did not break the law as the sound was available in TikTok’s library of content. (Activision and Fantano did not immediately respond to requests for comment.) The case is just one example of the tricky gray area that can come with using memes and trending sounds to go viral. 

“Brands are definitely feeling the pressure to tap into meme culture and trending sounds to stay relevant, relatable and engage more deeply with their target audiences across digital and social,” said Walid Mohammed, CEO & founder of influencer shop The Breadwinners Club. “Using memes and trendy sounds helps brands connect with younger audiences, boosts engagement, and makes their content shareable. When a brand’s meme goes viral, it spreads like crazy and gets people talking, which is gold for their brand awareness.”

Brands have to strike a delicate balance between the desire to go viral by participating in culture via memes and trending sounds with the inherent risks in doing so. It’s becoming harder for brands to get premium placement on TikTok’s For You Page without going viral — or using viral content, explained McKenzie Fields, director of strategy at Reach Agency, as the content that appears there will be whatever is trending which provides an incentive and reward for brands to use those trends.

With that being the case, some brands are willing to take some risk with content that’s everywhere online, explained an agency exec, who noted that more often than not the repercussions are minor i.e. requests to stop using the content or TikTok muting a sound on a post. Even as some brands are willing to take that risk, agency execs said licensing the use of a meme or trending sound from a creator should be the standard and that brands need to respect creators.

“Every rule-bender will not get reprimanded,” said Dentsu Creative senior strategist, Nancy Oganezov. “Smaller brands might often float under the radar with a Barbie, Elmo or American Girl doll meme and boost their social brand presence. On the flip side, a brand with more visibility (and potentially pre-existing notoriety) can get caught in a legal storm by using a trending sound or celebrity face without permission. Legal chats will become more and more prominent as this issue develops and social teams assess their comfort zones of legal risk.”

Going forward, marketers and agency execs expect that there will be more legal standardization when it comes to using memes and trending sounds, especially those from creators.

The gray area could empower influencers to understand the legal ramifications — and give brands pause on using their sounds without permission, said Amanda Levine, senior director of music and licensing at Platinum Rye Entertainment, the IP and talent procurement branch of The Marketing Arm.

“This is definitely not the last time we will see a case like this [Activision] arise,” Levine said.

3 Questions with Kevin Keith, Chief Marketing Officer at Edible

How is Edible managing through the burst of new social media platforms?

It’s really understanding who the audience is on each platform. Truthfully, each one — TikTok, in particular — has a very specific audience. We can do things we can’t do on Instagram or other platforms on TikTok, for example. As I started my role here, to give our brand a personality and really show up in a unique way on each platform. Old school way is that your brand personality is very rigid, in this box and it never moves. Taking that understanding of human anthropology and behavior, and applying it to our social strategy is really what I’ve focused on the most. If it’s just to post and pray, that’s not interesting to me. I encourage us not to go jumping into something until we have a really well-thought strategy. 

We’re leaving the text-based social era and living in the pivot to video. How does Edible feed the beast?

One of the first things we did here was really budget for it. We have been way underspent on content creation here. That’s honestly a very common problem I’ve seen everywhere … just the lack of understanding of voracious content, how expensive it can be, but how important it is. We’ve vastly increased our budget for that.

Aside from budget, how are you managing the need for content creation?

We do have an in-house team with about 15-20 individuals who really focus on in-house marketing content, photography, our e-comm site. Our agency [partner] is handling a lot of our top line programmatic, brand TV, if you will. But we handle pretty much everything else. What we’ve really tried to do in the past few months is set up some strategic partnerships with production companies who can help complement the work we do. Because let’s be honest, we can’t do everything. — Kimeko McCoy

By the numbers

After the debut of OpenAI’s ChatGPT, generative artificial intelligence has been moving full steam ahead in the advertising industry as more than 71% of agencies are using AI in one way or another, according to Digiday research. And seemingly, the next generation of shoppers prefer it, poised for the AI revolution, per new research from financial service company Klarna. Find details from the report below:

  • 48% of shoppers surveyed want to use virtual dressing rooms, 28% Augmented Reality (AR), and 23% will rely on Artificial Intelligence (AI) to advise which clothes best fit their body and fashion style.  
  • 65% of shoppers want the shopping experience to become more personalized in the future, and 36% are sure it will be, both in-store and online. 
  • Less than half of Gen Z’ers (43%) believe that shopping in Virtual Reality (VR) will come to surpass the real-life shopping experience within the next two decades. — Kimeko McCoy

Quote of the week

“While last year, brands were mostly asking for TikTok content, we’ve seen an increase in brands looking for a holistic short-form approach across platforms. This indicates that brands are not necessarily pulling money from TikTok but are expanding their investments in other platforms as well.”

— Tim van der Wiel, founder of social tech company Gospooky, on the push for short-form video content and how other platforms may be benefiting.

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