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Are pop culture jokes in your company’s ads considered fair use?

| Jun 4, 2020 | Intellectual Property

As a company producing consumer goods or offering services and attempting to engage with the public, you may develop customer personas and attempt a variety of marketing styles in order to engage with your intended customer base. Sometimes, especially if you want to market to people who are younger and trendier, humor and pop culture references could potentially play a role in your advertising or marketing campaign.

If you understand anything about intellectual property rights in the United States, then you probably already know that a violation of someone else’s copyright could have financial and legal repercussions for your business. Can you legally reference someone else’s original creation in an attempt to connect with your customers?

There is a fine line between fair use and copyright violations

Copyright protections exist in order to protect creators. Otherwise, someone could republish original works of art or writing without compensating the creator. Such behavior is problematic in part because it prevents creators from profiting off of their work and therefore removes the incentive for all of the hard work that goes into writing a novel, composing a new song or painting a beautiful landscape.

Of course, once a creation has become so ubiquitous that people all over the country recognize it, other people referencing that creation will likely not impact the financial success of that creative work.

In fact, making jokes about a pop culture phenomenon might even drive more people to look into it and enjoy it.

References, in some cases, may fall under fair use

Once something has copyright protection and becomes part of the culture, it is necessary for people to discuss, review and critique that work as part of the cultural dialogue. As such, it is possible for people to partially use or reference creative works that they do not own the rights to if they do so as an attempt to critique or parody that original work.

Many kinds of minor use of a copyrighted work or franchise will fall under fair use, potentially including jokes or references integrated into your advertising campaigns. However, it’s important to understand that using anything trademarked or specific enough to imply a relationship between your company and the franchise you reference could result in legal action or a cease-and-desist from the original creator or copyright holder.

Carefully reviewing pop culture references written into advertisements prior to their release to the public can help you prevent claims of copyright infringement that could hurt your company’s bottom line.

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