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Internet memes—those attention-getting images, videos, and catchy phrases that whip across the Internet via email and social media—have long been a part of online culture. But while a corporate strategy of exploiting memes can be highly entertaining and can capture consumers’ attention, using these online assets can be risky if intellectual property rights are infringed in their dissemination. If marketers at your company use Internet memes for corporate purposes, you risk unwittingly infringing the rights of intellectual property owners. Originally created by consumers for entertainment, Internet memes are becoming popular among corporate marketers. Internet memes exemplify a sort of online pop-culture Darwinism—survival of the funniest, if you will—in which the most clever creations are shared across the web. Memes evolve and spread rapidly, sometimes reaching worldwide popularity overnight. One author may create an image or idea around which other authors create permutations that are, virtually speaking, spread far and wide. Prominent examples include Keyboard Cat, Futurama Fry, Condescending Wonka, Ridiculously Photogenic Guy, Sexy Sax Man, and, of course, various images from the Cheezburger Network, one of the first websites to popularize Internet memes. Given the vast popularity of some of the most widely disseminated memes, it is not surprising that corporate marketers increasingly seek to harness this popularity to promote commercial interests. Major brands, including Nike, McDonalds, Cisco, and General Motors, are beginning to use them for advertising purposes. However, Internet memes pose a number of intellectual property-related questions for companies. In particular, your company’s marketing team or its marketing agency partners may assume that no one owns any protectable intellectual property exploited in these memes and that they are therefore freely available for use by any corporation for any purpose. This assumption could not be further from the truth and could lead to disastrous consequences, including significant legal fees and damages. Another misconception is that, if the meme were copyright- or trademark-protected, adopting it would be considered fair use under the Copyright Act. However, the fair use defense is not necessarily available when a work is appropriated for commercial use. According to court precedent, four factors are particularly relevant in guiding the determination of whether a use is a fair use:

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