Creating content “on the verge of a foul”: how to use memes, trends and other people’s newsworthy events?

Situational marketing is a real superpower that allows a brand to “catch the wave,” become relevant, and go viral. But a quick response to a popular meme or breaking news can just as quickly turn into a claim from the copyright holder. This process requires not only creativity but also a deep understanding of the rules of the game. Let’s take a look at where the fine line between successful creativity and legal “foul play” lies.

Section 1. Memes and viral images

Memes are the cultural code of the internet, a language spoken by millions. Integrating a popular meme into brand communication allows you to instantly become “one of them” for your audience, show your sense of humor, and go viral. However, behind the apparent simplicity and accessibility lies a serious legal problem: almost every meme has its author and copyright holder.

1.1. Where do memes come from?

Let’s examine the anatomy of a typical meme. Where does the visual basis come from, which then spreads across the network?

• Stills from films and TV series: A surprised Vincent Vega from Pulp Fiction, Leonardo DiCaprio with a glass from The Great Gatsby, Sean Bean with the phrase “You can’t just take it and…” from The Lord of the Rings. The rights to all these images belong to major film studios (Miramax, Warner Bros., New Line Cinema).
• Photos: The famous meme “Distracted Boyfriend” is a stock photo taken by photographer Antonio Guillem. He owns the rights to it, and it is sold on photo stocks under license. The same applies to the photo “Woman Yelling at Cat.”
• Drawings and illustrations: Many memes, such as “This is Fine” with a dog in a burning house, are part of a webcomic created by a specific artist (in this case, K.C. Green).
• Random photos of ordinary people: Sometimes photos of ordinary people taken at a certain moment become memes. This raises a twofold problem: the photographer’s copyright and the person’s right to their own image.

Thus, the vast majority of visual bases for memes are full-fledged objects covered by  copyright on memes. The fact that they have gone viral does not make them public domain.

1.2. Business risks: when using a meme can lead to a claim

As long as memes live in their natural environment—in entertainment public pages, forums, and private chats—copyright holders usually do not pay attention to them. This is a “gray area” where an unspoken rule applies: non-commercial use for entertainment purposes is conditionally acceptable.

But the situation changes dramatically when a meme takes over business. As soon as you use a meme to promote your product or service, it becomes commercial use. And here the risks increase significantly.

• Direct claim from the copyright holder: A major film studio or photo agency (e.g., Getty Images) may send you a formal letter demanding that you remove the content and pay a significant amount of compensation for the unlicensed use of their intellectual property.
• Claim from the person depicted in the photo: If the meme is based on a photo of a real person, they can sue for the illegal use of their image for advertising purposes. Such lawsuits are often valued at very large sums.
• Reputational damage: You may be publicly accused of stealing content, which will negatively impact your brand image.

Of course, the likelihood of receiving a claim for every meme used is not 100%. Many rights holders simply do not track this. But the risk always exists, and it is higher the larger your brand is and the more commercialized the use is.

1.3. How to use memes more safely?

It is not worth completely abandoning situational marketing. But you can significantly reduce the risks by following a few rules.

1. Create your own “meme-like” templates: This is the best and safest approach. Do not use a ready-made frame from a movie. Take the idea behind the meme, its structure, and reproduce it with your own characters or objects. For example, instead of a meme with two buttons, draw two buttons with your own brand design. This way, you are using the trend, but not someone else’s content.
2. Use meme generators that offer free templates: Some services and photo stocks (e.g., Canva, Imgflip) have image libraries that can be legally used to create memes, including commercial ones. Read the license for each specific image carefully.
3. Avoid direct links to the product: There is a difference between simply posting a meme with a witty caption that matches your brand’s “voice” and “sticking” an image of your product to the meme with a call to action to “Buy now!”. The less direct and more native the use of memes in advertising is, the lower the risk.
4. Choose memes carefully: Avoid using memes associated with major copyright “sharks” such as Disney, Warner Bros., and well-known photo agencies. The chances of receiving a claim from them are significantly higher.
5. Never use images of ordinary people: If a meme is based on a photo of a non-public figure, its use for commercial purposes should be categorically rejected. The risks here are maximal.

Following these rules will help you stay on trend without crossing dangerous legal boundaries.

Section 2. Trends, challenges, and music on Reels/TikTok

It is impossible to imagine modern situational marketing without short vertical videos. Reels on Instagram and TikTok dictate trends that change every week. For a brand, jumping on a trend at the right time means gaining huge organic reach. However, this is where one of the biggest and most dangerous legal pitfalls awaits marketers—the use of popular music.

2.1. Main problem: use of popular music.

When a regular user creates Reels, they have access to a huge music library that includes all the world’s hits. This is possible because platforms (Meta, TikTok) enter into global licensing agreements with rights holders (labels, artists) for the non-commercial use of music by their users.

But when it comes to a business account, the situation changes dramatically. Any content published by a business is considered commercial and promotional by default. And the global licensing agreements of platforms do not cover the commercial use of music. That is why, if you try to add a popular track to your video from a business profile, you will most likely see the message “This track is not available for business accounts” or simply not find it in the search.

What are the risks of circumventing this restriction?Many marketers try to get around it by editing videos with trending music in a third-party editor and uploading them, or temporarily switching their account to “author” mode. This is a very risky strategy.

• Removing video or audio: Platform algorithms are becoming increasingly intelligent. They can automatically recognize unlicensed music and remove your video or simply mute the audio, leaving a silent image.
• Shadow banning or reduced reach: The platform may limit the visibility of your content if it considers it to be in violation of its rules.
• Warning and account suspension: For repeated violations, your business account may receive an official warning, be temporarily suspended, or even be permanently suspended.
• Direct lawsuit from the copyright holder: This is the worst-case scenario. Major music labels (Universal Music, Sony Music, Warner Music) have entire departments dedicated to tracking illegal commercial use of their music and can file lawsuits for tens of thousands of dollars.

A simple rule: if you are a business, you cannot use music for which you do not have a commercial license.

2.2. Legal alternatives: commercial music library from Meta, paid music stocks

Fortunately, there is a solution. There are several completely legal ways to add sound to your commercial videos.

1. Commercial music library from Meta (Meta Sound Collection): Meta itself offers business accounts access to a large library of music and sound effects that have already been cleared for commercial use. Yes, it doesn’t have the latest hits by Billie Eilish, but it does have thousands of high-quality tracks in various genres that you can safely use in your Reels and Stories without fear of any sanctions. This library is available directly in the Reels editor for business profiles.
2. Paid music sources (Royalty-Free Music): There are specialized services that provide access to huge libraries of commercially licensed music for a subscription fee or a one-time payment. The most popular ones are:
   • Artlist.io
   • Epidemic sound
   • Envato Elements (AudioJungle). You purchase a license and can freely use the track in your advertising, on YouTube, in Reels – anywhere you want.
3. Music under free licenses (Creative Commons): There are tracks that authors distribute under free licenses that allow commercial use. However, you need to read the terms of each specific license very carefully (for example, some require mandatory attribution to the author).

2.3. Can visual trends and challenges be repeated? Yes, if they are not tied to specific music or protected characters.

Music is only one component of a trend. The second component is the visual idea: a specific editing technique, dance, joke, or way of presenting information. And here’s the good news: ideas, methods, and concepts are not protected by copyright.

This means that you can:

• Repeat the visual part of the trend: If the trend is to show “before/after” from a certain angle or with a certain transition effect, you can confidently reproduce this with your product.
• Participate in challenges: If a challenge is not tied to a specific music track, you are free to participate in it.
• Adapt the idea to your niche: You can take a popular joke or sketch structure and fill it with content relevant to your business.

Where is the border?

• Music: As we have already established, you cannot use original music. You need to find a legal alternative or use sound from a commercial library.
• Protected characters: If the trend is based on characters from movies or cartoons (for example, using masks or images of Disney characters), you are again at risk of violating the film studio’s copyright.

So, the main rule for Reels and TikTok is: take the idea of a trend, but “dress” it up with your own, legally cleared content and music.

Section 3. News and mentions of other brands (newsworthy events)

Responding to current events—from the launch of a new iPhone to a local city festival—is a great way to show that your brand is “alive in the real world.” It allows you to integrate into the existing information flow and attract the attention of an audience that is already interested in the topic. However, there are rules of the game here too, and breaking them can lead to accusations of plagiarism or trademark infringement.

3.1. The golden rule: facts are not protected by copyright, but the text of an article is. 

This is a fundamental principle that everyone who works with content must understand. Copyright protects the form of expression, not the information itself.

• Facts (information) are not protected: The mere fact that “Company X has released a new product” or “Event Z took place in City Y” is not subject to copyright. Anyone can use this information.
• The text of the news item is protected: However, the specific text of the article written by the ABC News journalist about this event, its structure, choice of words, and analytical conclusions are all considered a literary work protected by copyright.

Is it permissible to utilize someone else’s news? Directly copying and pasting news text from another website and publishing it on your blog or social media under your own name constitutes plagiarism and is a direct violation of copyright. It doesn’t matter whether you copied the entire article or just a few paragraphs. It is illegal.

3.2. How to do it right: refer to the event, give your own unique assessment or comment, and always cite the source.

There is a legal and ethical way to work with other people’s news stories, and it is based on creating your own unique content based on the event.

1. Just take the fact: Learn about the event from a reliable source.
2. Create your own text: Don’t rewrite someone else’s article; write your own unique text from scratch.
3. Add your own value: This is the most important thing. Don’t just retell the news, give your expert opinion, analyze how this event will affect your industry, and give your audience useful advice related to this news. For example, if a new advertising law has been passed, don’t copy the text of the law, but write an article titled “What the new advertising law means for SMM specialists” with your conclusions and recommendations.
4. Always cite your source: Even if you have written completely original text, it is good practice (and sometimes required by information law) to cite where you learned about the event itself. A simple phrase such as “According to [name of publication] with reference to…” or a hyperlink to the original source will resolve most ethical issues.
5. Citation: The law permits the use of short excerpts (quotations) from other people’s works in review or analytical articles, provided that the author and source are clearly indicated. However, the quotation must be short and justified by the purpose of your publication, and should not constitute its main content.

3.3. Mentioning competitors or other brands: be careful not to violate advertising laws or trademark rights.

Situational marketing is often based on friendly “jokes” or comments about the actions of other brands. This can be very effective, but here you enter the regulatory zone of the Advertising Law and the Law on the Protection of Rights to Marks for Goods and Services.

What to remember:

• Prohibition of unfair comparisons: As we have already mentioned, the Advertising Law expressly prohibits comparative advertising that contains false information, is misleading, or discredits a competitor’s product. You cannot directly state: “Our burger tastes better than McDonald’s.”
• Using someone else’s trademark: Using another brand’s logo or name in your advertising without permission may be considered a violation of their trademark rights.
• Risk to business reputation: Even if you are not directly breaking the law, an ill-advised joke about a competitor could result in a lawsuit for protection of business reputation.

How can we make it safer?

• Be positive: Instead of criticizing your competitor, praise them and offer cooperation. This creates positive publicity.
• Use hints rather than direct references: It is often possible to navigate a situation without directly naming a competitor. Your audience will understand everything anyway.
• If you compare, then only with objective data: The law allows comparative advertising if it is based on objective, verified characteristics (for example, “our rate is 10% cheaper than rate X, which is confirmed by data on their website as of…”).

Interacting with other brands requires great caution and tact. The best strategy is to focus on your own strengths rather than your competitors’ weaknesses.

Section 4. Does “Fair Use” exist in Ukrainian marketing?

Many marketers, especially those working with international markets, have heard of the American concept of “fair use.” There is a common misconception that this principle allows the free use of any content in small quantities or “for good purposes.” This is a dangerous misconception that can be costly, as Ukrainian law operates under completely different rules.

4.1. Clarification of the concept of “fair use” in the United States and its analogues in Ukraine (quotation, parody)

Fair Use is a doctrine of US copyright law that allows limited use of protected materials without the copyright holder’s permission for purposes such as criticism, commentary, news reporting, teaching, or research. It is important to understand that Fair Use is not a clear-cut rule, but rather a legal defense that you can try to apply in court if you are sued. In each specific case, the court analyzes four factors:

1. Purpose and nature of use (commercial or non-commercial/educational).
2. The nature of the work used.
3. The scope and significance of the excerpt used.
4. The impact of use on the potential market and value of the original work.

Analogues in Ukraine: Ukrainian copyright law does not contain a direct analogue of “Fair Use.” Instead, it provides an exhaustive list of cases of free use of a work. This means that you can use someone else’s work without permission only in cases that are explicitly listed in the law.

Such cases include:

• Citation: Use of short excerpts from lawfully published works to the extent justified by the purpose, with mandatory indication of the author and source.
• Use for educational and scientific purposes: For example, as illustrations in textbooks.
• Creating parodies and caricatures.
• Use for creating informational reports on current events.

As you can see, this list is much shorter and more specific than the American doctrine.

4.2. Why commercial use (advertising) almost never falls under the “fair use” exceptions

And now the most important thing for marketers. Both the American and Ukrainian systems have one common denominator: commercial use is the most compelling argument against recognizing such use as fair or free.

When you use a meme, a movie clip, or someone else’s music in your advertising, your goal is to make a profit. You are not doing it for criticism, educational purposes, or to inform people about current events. You do it to sell your product or service. That is why fair use in marketing is the exception rather than the rule.

• Using a meme to sell pizza is not parody or quotation; it is direct commercial advertising.
• Using a trending track in Reels to promote your course is not personal use, but part of your marketing funnel.

Attempting to justify the use of someone else’s content in advertising by citing exceptions to copyright law is a very weak and risky legal position. In 99% of cases, the court will side with the copyright holder. Therefore, going back to basics, the general rules for marketers remain unchanged: you need to obtain permission to use someone else’s content for commercial purposes. This and other aspects are discussed in detail in our article “Legal checklist for marketers: from content creation to launching an advertising campaign“.

Conclusions

Situational marketing requires brands to not only respond quickly and creatively, but also to exercise a high degree of legal caution. The golden rule that should guide you is: if you did not create the content yourself, you most likely do not have the right to freely use it for commercial purposes.

Always assess potential risks before jumping on a new trend. Give preference to creating your own unique content based on popular ideas rather than direct copying. This will not only protect you from legal claims, but also demonstrate your originality. Remember that trends are often started by influencers, and legally sound cooperation with content creators is another important aspect of safe marketing. Read more about this in our article “Agreement with an influencer: how to legally formalize cooperation with a blogger?”.