Memes, stock photos and trending tracks feel free, but each one belongs to someone. For a marketer the rule is simple: fair use is a defence you raise in court, not a permission you hold, and for advertising it rarely works. If you did not create it, you need a licence. In the US a commercial use with the same purpose is unlikely to be fair use after Warhol v. Goldsmith, and the EU has no general fair use. We go through how this works in the US and the EU and what a marketer should check before publishing.
Checked on 21 October 2026. Rules and sources are current as of this date.
The golden rule: almost everything online belongs to someone
Photos and illustrations
Belong to the photographer or artist.
Music
Rights belong to the composer, songwriter and the label.
Film and TV clips
Belong to the studio.
Texts and articles
Belong to the author or publisher.
Memes
Often a derivative work built on someone else’s copyrighted image.
Expect a takedown notice, a demand for compensation or a lawsuit, plus damage to the brand’s reputation.
Fair use and its EU counterparts
In the US fair use is a defence, not a right, and a judge weighs four factors. In Warhol v. Goldsmith (2023) the Supreme Court held that when the original and the new use share the same or a highly similar purpose and the use is commercial, the first factor weighs against fair use absent some other justification for copying.
The EU has no general fair use, only a closed list of exceptions. In April 2026 the CJEU (Court of Justice of the EU) ruled in Pelham II that pastiche is an autonomous EU concept: the work must evoke an existing one while being noticeably different and engage with it in a recognisable artistic dialogue. Humour is not required, but concealed imitation is excluded.
Purpose of the use
Commercial promotion weighs against you; criticism, commentary and education weigh in favour.
Nature of the work
Creative works such as songs and films are protected more strongly than factual ones.
Amount used
Taking the recognisable heart of a work counts against you even if it is short.
Effect on the market
If your use replaces a licence the owner could sell, this factor goes against you.
What US law says about fair use
Fair use is set out in Section 107 of the US Copyright Act. It provides that the fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship or research is not an infringement. The list of purposes is open, as the words “such as” show, but advertising is not named in it.
The court must consider at least four factors. These are the purpose and character of the use, including whether it is commercial or for nonprofit educational purposes, the nature of the work, the amount and substantiality of the portion used in relation to the work as a whole, and the effect of the use on the potential market for or value of the work. The judge decides each case separately, so the outcome cannot be guaranteed in advance.
What the Supreme Court decided in Warhol v. Goldsmith
In 2016 the Andy Warhol Foundation licensed to Condé Nast for USD 10,000 the image “Orange Prince”, which Warhol had created from a photograph by Lynn Goldsmith, for the cover of a magazine commemorating Prince. Newsweek had commissioned the photograph in 1981, and Goldsmith later gave Vanity Fair a limited licence to use it as an artist reference for one illustration.
On 18 May 2023 the Supreme Court, by seven votes to two, confirmed that the first fair use factor favours Goldsmith. The Court assessed only the specific use, the licensing of Orange Prince to the magazine. The photograph and the portrait serve substantially the same purpose, illustrating a story about Prince, and the use is commercial.
The Court also explained that new meaning or new expression is not enough on its own. Otherwise “transformative use” would swallow the author’s right to prepare derivative works. The more the purpose of the use differs, the more likely fair use is, but the commercial nature of the use weighs against it. Where the original and the copy share a purpose, copying needs a particularly compelling justification, and merely helping to convey a new meaning is not enough.
For advertising the conclusion is direct. If you take someone else’s image for the same purpose for which it was made and licensed, and do so for commercial gain, the chances of fair use are slim.
We will review your situation and propose a solution for your project.
What a mistake costs in the US
Under Section 504(c) a copyright owner may elect statutory damages instead of actual damages, from USD 750 to USD 30,000 per work. For wilful infringement the court may raise the award to USD 150,000 per work. So a single campaign using several third-party images multiplies the risk.
Copyright exceptions in the EU
The EU has no general rule like Section 107. Directive 2001/29/EC contains a closed list of exceptions in Article 5, and Member States may, but need not, introduce most of them (Article 5(3)). So the set of exceptions differs from country to country.
Quotation for purposes such as criticism or review (Article 5(3)(d)) is allowed if the work has already been lawfully made available to the public, the source and author are indicated, the use is in accordance with fair practice and is limited to what the purpose requires. Dropping someone else’s image into an ad does not qualify.
The exception for advertising the public exhibition or sale of artistic works (Article 5(3)(j)) applies only to the extent necessary to promote the event itself and expressly excludes any other commercial use. Caricature, parody and pastiche (Article 5(3)(k)) is a separate exception, covered above.
Every exception applies only in certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rightholder (Article 5(5)).
Memes, photos and music in practice
Case analysis
A brand marketer takes a popular meme with a photo of a well-known person and a snippet of a song for a social media ad, assuming it is “just internet culture”. A sensible order of action is to find out who owns the photo and the music, obtain licences or replace the material with original content, check the platform terms, and remember that the EU has no general fair use principle.
Your legal content checklist
Who created it?
If it was not you, find out who holds the rights.
Start hereWhat is my purpose?
Entertaining or selling? Selling carries the highest risk.
Do I have a licence?
“Everyone does it” is not permission.
ImportantWhat are the consequences?
Is the brand ready for a claim and the reputational damage?
Is there a safer alternative?
Licensed or original content almost always works.
Creativity thrives on a solid legal foundation: a licensed asset is cheaper than a claim.The LegalBit team
Frequently asked questions
How much can infringement in advertising cost in the US?
Under Section 504(c) statutory damages range from USD 750 to USD 30,000 per work, and up to USD 150,000 for wilful infringement. The owner may instead claim actual damages.
Can fair use protect an advertisement?
Rarely. Fair use is a defence decided by a judge case by case, and commercial advertising that serves the same purpose as the original usually loses on the first factor.
Does the EU have fair use?
No. The EU has a closed list of exceptions such as quotation, parody and pastiche, interpreted narrowly. Pelham II (2026) defines pastiche but does not create a general right.
Is crediting the author enough?
No. Credit is not a licence. You need permission or a licence that covers advertising use.
Can I use trending music on a business account?
Usually not from the general library. Use the platform’s commercial music library or a licence from a dedicated source, and check the platform’s current terms.
See also: AI-Generated Content and Copyright: Who Owns the Rights to Generated Texts and Images?; The High Stakes of Digital Marketing: What to Check Before You Launch a Campaign. Services: legal services for digital marketing and affiliate.
- U.S. Copyright Office: Andy Warhol Foundation v. Goldsmith (2023)
- CJEU: Case C-590/23 (Pelham II)
- European Commission IP Helpdesk: CJEU Grand Chamber on pastiche
- U.S. Copyright Office: 17 U.S.C. §107
- U.S. Copyright Office: 17 U.S.C. §504
- Supreme Court of the United States: Andy Warhol Foundation v. Goldsmith, No. 21-869 (2023)
- EUR-Lex: Directive 2001/29/EC, Article 5
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