The Spanish Intellectual Property Law – https://www.boe.es/buscar/act.php?id=BOE-A-1996-8930- protects both the moral and economic rights of the author in its Articles 14 et seq. In addition, Article 31 regulates certain limits or exceptions, which do not expressly include the use of memes.
The legal reality of memes
The popular belief that memes are in the “public domain” is a dangerous myth. Most memes are built on pre-existing works: a scene from a movie, an image from a television series, the face of a celebrity, or a fragment of a song. All of these works are protected by copyright law. When a brand uses that meme for commercial purposes (e.g., to promote or sell a product or service), it is using a protected work without the permission of the original author.
The law does not have a “meme exception” for brands. For a use to be considered legal (or fair use), it must be an act of parody or be transformative in nature, adding substantially new meaning to the original work. An advertising post that simply uses an image to generate awareness does not usually meet this requirement.
The risk of negligence in social media
Although most disputes are settled privately, brands that ignore the risks of memes are setting a precedent for negligence. The legal message is clear: a simple social media post can lead to a costly lawsuit. By using copyrighted material, brands expose themselves to litigation that can damage their reputation, their business, and their bottom line.
In a world where the line between private use and commercial use of content is increasingly blurred, companies must be proactive. While creativity is crucial in marketing, it should not compromise legality. For any business, intellectual property should be a priority, even in seemingly harmless social media strategy.
