Advertising lawyers often have to remind their beloved marketing colleagues and clients of a few things, like (i) getting a license to use a third party's photograph in an ad doesn't necessarily give you the right to use the image of any person in that photograph because the copyright holder and the right of publicity holder are not necessarily the same person; and (ii) stuff you find online is not free for the taking; and (iii) brands are not people: what I may be able do online in my personal (non-commercial) capacity is not what a brand can do in its advertising, at least not without taking a lot of risk.
Cue a recent case in the Southern District of New York illustrating these points so clearly that we should probably all just keep this in our files for future presentations and discussions with our marketing comrades. The case involves two social media posts created by the energy drink company, Oasis. Oasis posted two images of a man holding a sign advertising a sale on its drinks and encouraging consumers to buy it for their moms. The problem is that, as alleged in the complaint, Oasis used the viral meme "ManWithSign" to create its posts, using the image, including the person shown in the original image, Seth Phillips, and just changed the words on the sign. The plaintiff, exclusive licensee of Phillips' right of publicity, and registered copyright holder of the original image, sued Oasis for the unlicensed use of the meme to advertise Oasis's products. The complaint asserts federal copyright infringement, violation of New York's right of publicity statute (Civil Rights Law Section 51); and false endorsement under the Lanham Act.
Oasis moved to dismiss the complaint and the court denied the motion in full.
On the copyright infringement charges, Oasis argued a variety of defenses, including that it modified the image and that it was fair use. The court didn't buy either argument, finding that the "modifications are not so vastly different that the allegedly infringing images bear no passing resemblance to the original." Indeed, the court noted, the individual shown is the same and the format is the same. The only actual difference is the choice of words on the sign. "But that distinction alone does not mean that no reasonable jury could conclude that Oasis infringed upon [the plaintiff's] copyright." Further, although the court said that it couldn't address Oasis's fair use argument on a motion to dismiss, it did say that "even assuming that a First Amendment defense applied to claims for copyright infringement, the allegedly infringing material here advertised energy drinks. Whatever right there may be to 'expressive content,' that right would not necessarily extend to commercial contexts."
The court was equally unimpressed with Oasis's attempt to defeat plaintiff's right of publicity allegation, finding that the complaint specifically alleged that Oasis used Phillips' image and likeness "for advertising and trade purposes" and to "promote Defendant's business." Accordingly, the court found, the plaintiff had alleged the necessary elements of a right of publicity claim. (I will note that there is one very confusing line in the decision, dismissing the argument that plaintiff's right of publicity claim was preempted by New York Civil Rights Law § 50-51. The court stated that the New York statute "does not apply where the alleged use is non-incidental or commercial." Since the NY Civil Rights Law applies when someone's persona is "used...[without consent] for advertising purposes or for the purposes of trade," I have no idea what the judge was getting at. But the right of publicity claim was not dismissed and not preempted so perhaps we'll learn more as the case proceeds. That is, unless it settles.)
The takeaway here is, of course, pretty obvious: memes – especially ones showing a real person -- are not there for the taking by brands, at least not for advertising purposes.
A final note: I really can't write about legal issues involving memes without directing you all, dear readers, to the absolutely brilliant analysis written by my partner Brian Murphy way back in 2019. If you didn't read it then (or even if you did), go read it now: Miss Vanjie! Miss Vanjie!: What RuPaul's Drag Race Can Teach Us About Fair Use Under Copyright.
FJerry, LLC v. Oasis Energy Drink LLC, 25-cv-6088 (JSR) (SDNY Oct 30, 2025)
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