Can Companies Use Memes Featuring Private Individuals?
Introduction
Memes featuring ordinary people can spread rapidly online and may appear attractive for commercial advertising. However, a company that copies, edits, publishes, or monetizes a viral image may face legal exposure when the person depicted did not consent to its commercial use.
The principal concerns are the individual’s right to privacy, protection against unauthorized commercial appropriation of identity, and possible damages for injury to dignity, reputation, or private life. Copyright may also be relevant, but copyright ownership and the depicted person’s privacy rights are separate questions.
What Legal Rights May Be Affected?
Several legal interests may arise when a business uses a meme showing a private individual:
- Privacy and personality interests: the person may object to the public or commercial use of their image without consent.
- Reputation and dignity: the use may expose the person to ridicule, embarrassment, or a misleading association with a product.
- Copyright: the photographer, creator, or other copyright owner may control reproduction and commercial exploitation of the image.
- Special criminal liability: intimate photographs or videos may be covered by the Anti-Photo and Video Voyeurism Act, depending on the circumstances.
Privacy and Unauthorized Use of an Image
Article 26 of the Civil Code protects, among other interests, a person’s privacy, dignity, personality, and peace of mind. A company may incur civil liability when it uses another person’s image in a public advertisement without consent, particularly when the use intrudes into private life or causes mental anguish, damage to reputation, or other injury.
In St. Louis Realty Corporation v. Court of Appeals (G.R. No. 46061, September 21, 1984), the Supreme Court recognized that the unauthorized use of a person’s image or property in a public advertisement may violate the right to privacy under Article 26 of the Civil Code. The Court also recognized that civil liability may exist even when the conduct does not amount to a criminal offense, with recovery potentially including actual, moral, and exemplary damages.
The fact that an image was publicly visible online does not automatically mean that a company may use it for advertising. Public availability and commercial consent are different matters. A person may upload a photograph for personal or social purposes without authorizing a business to associate that photograph with a product, service, promotion, or corporate message.
Does a Viral Image Become Free for Commercial Use?
No. Virality does not eliminate privacy rights, copyright, or the need for permission. A meme may be widely copied by users, but a company’s commercial use presents a different legal context because it may imply endorsement, generate profit, or connect the depicted person with the advertiser.
Risk is greater when the advertisement:
- uses the person’s face, name, username, or recognizable identity;
- places the image beside a product, brand, slogan, or promotional offer;
- creates the impression that the person supports or endorses the company;
- alters the image in a humiliating, sexualized, defamatory, or misleading manner; or
- uses the image to attract customers or increase engagement without permission.
Is Consent Required Even If the Photo Was Initially Shared Online?
As a general proposition, obtaining consent is the safest course when a company intends to use a private individual’s recognizable image in advertising. Consent should identify the intended platform, duration, territory, media, editing rights, and commercial purpose.
A person’s consent to being photographed is not necessarily consent to commercial publication. Likewise, consent to upload an image to a social-media account does not necessarily authorize a company to reproduce the image in paid advertisements, product promotions, or branded content.
Where the person originally consented to the recording but later objects to the distribution or publication of an intimate image, the Anti-Photo and Video Voyeurism Act of 2009 may impose criminal liability for unauthorized reproduction, sale, distribution, or publication. The law is particularly concerned with the subsequent misuse of intimate photographs or videos, not merely with the circumstances of the original recording.
Copyright Is Separate From Privacy
The person shown in a photograph is not automatically the copyright owner. Copyright generally belongs to the author or other person legally entitled to the work, subject to the ownership rules of the Intellectual Property Code.
Under the Intellectual Property Code of the Philippines, copyright protection arises from the creation of an original literary or artistic work. In the case of an audiovisual work, ownership may involve the producer, scenario author, composer, director, and other creators, subject to the statute and applicable agreements.
In Cosac, Inc. v. Filipino Society of Composers, Authors and Publishers, Inc. (G.R. No. 222537, July 5, 2023), the Supreme Court explained that copyright protection arises from creation and that unauthorized use of material in a manner reserved to the copyright owner or assignee may constitute infringement.
Accordingly, a company may need permission from both:
- the copyright owner or authorized rights-holder of the photograph, illustration, video, or graphic; and
- the recognizable person depicted, when the use implicates privacy, dignity, reputation, or commercial endorsement concerns.
A copyright license alone may not resolve the depicted person’s privacy or publicity objections. Conversely, permission from the person shown may not authorize reproduction of a photograph owned by someone else.
What If the Meme Uses a Screenshot or Social-Media Photograph?
A screenshot is not automatically free from legal restrictions. Copying a photograph from a social-media account may reproduce a protected work. Editing it by adding captions, logos, filters, or product references may still involve reproduction or adaptation of the original material.
The company should determine:
- who created the image;
- whether the image is original or copied from another source;
- whether the creator transferred or licensed any rights;
- whether the depicted person gave permission for commercial use; and
- whether the proposed advertisement changes the meaning or context of the original image.
The Intellectual Property Code also recognizes moral rights. An author may waive moral rights only through a written instrument, and a waiver is not valid for certain uses involving unauthorized use of the author’s name or injury to the author’s artistic reputation.
Can a Company Rely on the Meme’s Transformative or Humorous Character?
Humor does not by itself defeat a privacy or damages claim. A meme may be humorous to the public but humiliating or damaging to the person depicted. The commercial setting also makes the use more difficult to justify because the company is using the person’s identity to promote its own interests.
The assessment depends on the circumstances, including the nature of the image, the manner of editing, the audience, the purpose of the publication, the presence of consent, and the likelihood that viewers will associate the person with the brand.
In Lagunzad v. Gonzales (G.R. No. 32066, August 6, 1979), the Supreme Court recognized that privacy interests may be protected against unauthorized exploitation and that freedom of expression, although constitutionally preferred, is not absolute. The ruling concerned the unauthorized exploitation of a deceased person’s life story and the privacy interests of surviving relatives; it should not be treated as a general license to suppress all commentary or parody.
Possible Civil Remedies
A person whose image was used without authority may consider civil remedies under the Civil Code, depending on the evidence and the nature of the injury. These may include an action for damages, injunction, or other relief supported by the facts.
Potential damages may include:
- Actual damages for proven financial loss;
- Moral damages for mental anguish, wounded feelings, besmirched reputation, or similar injury when legally established; and
- Exemplary damages when the conduct was wanton, fraudulent, reckless, or malevolent and the legal requirements are met.
The person should preserve copies of the advertisement, publication dates, engagement metrics, product pages, internal communications if available, and evidence showing that the image was used to promote the company. These materials may help establish publication, attribution, commercial purpose, and resulting injury.
When May Criminal Liability Arise?
Unauthorized commercial use of an ordinary, non-intimate photograph is not automatically a crime under the Anti-Photo and Video Voyeurism Act. That statute specifically addresses prohibited acts involving intimate photographs or videos and must be applied according to its elements.
Other criminal laws may become relevant if the publication involves obscenity, defamation, fraud, harassment, exploitation, or other independently punishable conduct. The facts must be examined carefully because an offensive or unauthorized advertisement is not necessarily criminal merely because it is objectionable.
Recommended Compliance Process for Companies
Before using a viral image in an advertisement, a company should adopt the following process:
- Identify the subject and creator. Determine whether the person is private, public, or unidentified, and identify the photographer or original creator when possible.
- Obtain written permissions. Secure a copyright license and a separate release from the recognizable person depicted.
- Describe the intended use. Specify the platforms, campaign period, geographic scope, editing rights, compensation, and whether paid promotion is allowed.
- Review the proposed context. Avoid captions or edits that suggest endorsement, ridicule, sexualization, criminality, or other harmful associations.
- Maintain records. Keep the releases, licenses, approvals, and communications supporting the company’s authority to publish.
- Respond promptly to objections. Consider pausing the advertisement while investigating a complaint, particularly when the person is identifiable and no written consent exists.
Typical Examples
Example 1: Brand endorsement. A company places a viral photograph of a surprised commuter beside its product and adds the caption, “This is how customers react to our discount.” If the commuter is identifiable and did not consent, the use may create privacy, reputational, and implied-endorsement concerns.
Example 2: Commentary without commercial branding. A news or commentary page discusses the social meaning of a viral image without selling a product or implying the subject’s endorsement. The privacy and copyright analysis may differ, although unauthorized reproduction and harmful treatment remain possible concerns.
Example 3: Intimate material. A company circulates or republishes an intimate image to attract attention to a campaign. This may expose the responsible persons to serious civil and criminal consequences under the Anti-Photo and Video Voyeurism Act, regardless of whether the image had previously been recorded with the subject’s consent.
Conclusion
Companies should not assume that a viral meme is free for commercial use. The safer legal position is to obtain written authorization from the copyright owner and the recognizable person depicted, conduct a privacy and reputational review, and avoid any presentation that implies endorsement or subjects the person to ridicule or embarrassment.
When consent is absent, a business should assess whether the proposed use intrudes on privacy, exploits identity, infringes copyright, or involves intimate material covered by special criminal legislation. Prompt removal, preservation of evidence, and a documented response may reduce continuing harm, but they do not automatically eliminate liability for the original publication.
About Nicolas and De Vega Law Offices
Nicolas and de Vega Law Offices is a full-service law firm in the Philippines. You may visit us at the 16th Flr., Suite 1607 AIC Burgundy Empire Tower, ADB Ave., Ortigas Center, 1605 Pasig City, Metro Manila, Philippines. You may also call us at +632 84706126, +632 84706130, +632 84016392 or e-mail us at [email protected]. Visit our website https://ndvlaw.com.
