Right of Publicity: Can Brands Post Pop-Culture GIFs?

This article examines the legal risks corporate social media accounts face when sharing trending pop-culture GIF memes. While everyday internet users share celebrity reactions freely, businesses operate under distinct commercial regulations. Using recognizable individuals in corporate marketing campaigns without authorization exposes brands to right-of-publicity claims, false endorsement lawsuits, and substantial statutory damages.

Understanding the Right of Publicity

The right of publicity is a state-level legal doctrine in the United States that grants individuals the exclusive right to control the commercial use of their identity, including their name, image, likeness, voice, and signature. Unlike general copyright law—which protects the original creator or distributor of the media asset—publicity rights protect the person depicted in the media.

Thirty-five states currently recognize the right of publicity through statutory law, common law, or both. In states like California and New York, these protections extend beyond living individuals to the estates of deceased public figures, making the unauthorized commercial use of historical or deceased celebrities equally hazardous.

The Boundary Between Personal and Commercial Use

The legal exposure associated with posting a GIF depends largely on the identity of the poster and the intent of the message.

• Individual Users: When an individual shares a GIF of a celebrity on a personal account, the post falls under non-commercial expressive speech protected by the First Amendment.
• Corporate Entities: When a brand or business entity posts the same GIF from its corporate account, courts generally view the content as commercial speech. Commercial speech exists to promote products, generate brand awareness, capture market attention, or build an audience for commercial benefit.

Because corporate social media is intrinsically tied to brand value and lead generation, courts frequently reject arguments that corporate meme-sharing is purely commentary or artistic expression.

The False Endorsement Trap

Beyond state-level publicity rights, corporate use of celebrity GIFs risks violating Section 43(a) of the federal Lanham Act. This statute prohibits false advertising and false association.

If a reasonable consumer could infer that the celebrity depicted in the GIF endorses, sponsors, or is affiliated with the brand, the company can be held liable for false endorsement. High-profile cases—such as actress Katherine Heigl's lawsuit against pharmacy chain Duane Reade for tweeting a paparazzi photo of her carrying their shopping bags—demonstrate that a brand does not need to explicitly say an endorsement exists; context and commercial association are sufficient to trigger liability.

Third-Party Platforms Do Not Grant Likeness Licenses

Many corporate social media teams operate under the misconception that built-in GIF search engines on platforms like X, Instagram, and LinkedIn provide safe harbors. Searching and embedding a GIF through services like GIPHY or Tenor does not grant commercial clearance.

GIPHY’s and Tenor’s terms of service clearly delineate that their platform licenses are for personal, non-commercial use. While the platform or the GIF creator may hold the copyright to the underlying short clip, they rarely possess the publicity rights of the actor, athlete, or public figure featured inside the frame. The brand using the asset remains solely responsible for acquiring third-party likeness clearances.

Best Practices for Corporate Social Media Compliance

To avoid costly litigation, statutory fines, and reputational damage, brands must implement clear social media guidelines:

1. Eliminate Unlicensed Celebrity Assets: Prohibit corporate accounts from publishing GIFs featuring recognizable actors, musicians, athletes, or internet-famous figures without a written talent agreement.
2. Create Original, Branded GIFs: Commission original animations, company-owned mascots, or consenting employee talent to establish an authentic, fully cleared GIF library.
3. Rely on Fair Use Exceptions Cautiously: Fair use defenses in commercial contexts are exceedingly narrow. Simply participating in a "viral moment" or adding humorous text to a trending clip does not insulate a commercial business from infringement claims.
4. Secure Express Licenses: If a pop-culture reference is critical to a marketing campaign, work with the depicted talent's representation and the copyright holder to draft a comprehensive commercial licensing agreement.