How this “distracted guy” meme can cost you thousands
In March’s “Marketing & Branding Month” we’ll be detailing agent branding and spending best practices at Zillow, Realtor.com, and more. Top CMOs from leading firms also drop by to share their latest tactics. And to round off this themed month, Inman is introducing a brand new set of awards for industry leaders in branding and marketing called Marketing All-Stars.
Do you think you recognized that photo at the beginning of this story? This is an unbranded version of a photo that went viral a few years ago. The original, known as the “Distracted Guy” meme, has been shared and reposted on the internet millions of times. You may even have created the meme yourself and shared it on your social media feed.
Did you know, however, that The Distracted Guy is not in the public domain? This is a photo by Antonio Guillem and is licensed from Shutterstock. Anyone who wants to use a photo for any purpose has to pay for the privilege, but it’s been used over and over again because getting it is as easy as google it and right click.
You might think that taking a photo that turns into a famous meme would be a huge compliment for the photographer that would lead to fame and fortune. However, this is not the case.
According to Guillen, he received very little income from Distracted Boyfriend (whose real name is “A cheating man walking with his girlfriend and looking in amazement at another seductive girl”). However, he is more concerned about how the use of the meme has led to disrespect for the models, two of whom – the confused boyfriend himself and his annoyed girlfriend – are close to him and work exclusively with him.
Why memes are such tempting marketing material
Of course, most people who share memes like “Distracted Guy” don’t see them as serious or disrespectful. Most people share them for fun or to be part of a popular online trend.
For real estate professionals looking for a cheap and easy way to get attention on their social media feeds, sharing the latest fun content is a no-brainer. Make your version of the meme funny enough that clients and colleagues who follow your feed can share it.
Problem? As with Guillen’s photo, many of the images that end up as memes aren’t free, especially for commercial use. This could mean that your viral marketing could lead to legal action, especially if the original creator decides that you have used their content in an offensive way.
This is exactly what happened in Furie v. Infowars, LLC, 401 F. Supp. 3d 952, 971 (CD Cal. 2019). Artist Matt Fury has filed a copyright infringement lawsuit against Infowars for marketing materials that used his character Pepe the Frog, which was appropriated as a meme by members of alt-right online communities.
Infowars eventually settled out of court with Furie, paying $15,000 in damages and destroying unsold marketing materials. However, intentional infringement can result in a fine of up to $150,000 if the content creator is willing to seek damages through the courts.
According to Westlaw Today, factors governing fair use include:
the purpose and nature of the use, including whether such use is commercial or non-commercial for educational purposes; the nature of the copyrighted work; the number and materiality of the part used in relation to the copyrighted work as a whole; and the impact of use on the potential market or value of the copyrighted work.
One factor that keeps content creators from filing a lawsuit is the costs they incur in doing so, which can sometimes exceed the potential damages. In an attempt to address this problem, Congress passed the CASE Act, which directed the Copyright Office to create a tribunal of officials appointed by the Librarian of Congress. This process limits potential financial rewards, but makes it easier and more accessible for authors to recover damages.
What is your legal exposure?
Mindy Giftos
Relying on fair use as a way to circumvent copyright issues is probably a losing strategy, according to Mindy Giftos, partner at Husch Blackwell and an intellectual property attorney.
From a purely legal standpoint, you cannot use someone else’s work without their permission. The fair use doctrine never asserts the right to use something. If you rely on fair use, you won’t know if it’s fair use until a judge makes a decision about it.
The reality is that copyright law is very complex and most people don’t understand it. When you add on the internet where people share things it really muddies the water. You should never use someone else’s work unless you have permission to do so.
According to Giftos, there are many myths surrounding the use of online content. One of them is that as long as you give credit, you can use something that you pulled from an online source. It’s just not true.
Don’t think these laws don’t matter just because you’re a small company. You certainly don’t want to deal with this on the backend. Especially in a commercial context, make sure that what you post is your own and that you have licensed any images you use.
According to Giftos, there are many different ways that content creators can contact a business owner. In some cases, you can solve the problem by saying, “I’ll take this off. I’m sorry, I didn’t know.” However, she says many of the big image providers have tags on their photos and can send you a link so you can pay for the damages – sometimes worth thousands of dollars.
“It really depends,” Giftos said. “You can share something and the owner doesn’t care, and you can have other people really aggressively trying to monetize their work.”
So are you going to be sued for using a meme in your marketing?
While it’s unlikely that your use of a meme will land you in court, especially if there are a lot of online mailings and bigger financial fish, it’s worth playing it safe by avoiding content that isn’t considered fair use. .
Remember, court precedent says that just because you add words to a photo or use it in unpaid, organic posts doesn’t make it bona fide. If you are using it to promote your business and have not paid for the privilege, you may be liable for damages. This is not a risk worth taking.
Would you like to share this funny meme and call it your mood for the day? According to Giftos, the best way to do this is through a text message or on your personal page. Don’t turn this into an advertisement for your real estate business.
