Article 2: “But It’s Fair Use!” — The Most Misunderstood Defence in Advertising. The Drake Equation.

When confronted about unauthorized use of an image, many brands respond with a familiar refrain: “It’s fair use.” The phrase is invoked with confidence, as though it were a magical legal shield that dissolves responsibility. In reality, fair use is one of the most misunderstood—and most abused—concepts in modern advertising.

Drake has become a popular meme which signifies that he doesn't like the first item and prefers the second item. Rentola has co-opted the meme to say that Drake endorses Rentola. Does Drake endorse Rentola? As a bonus, the Nike Air Logo on his shirt is also used in this ad.

What Fair Use Actually Is

Fair use is a limited exception in copyright law designed to allow specific uses of copyrighted material "without permission". In the United States and Canada, courts typically examine factors such as:

• The purpose and character of the use

• Whether the use is commercial or educational

• The amount and substantiality of the work used

• The effect on the market for the original work

Crucially, fair use is not automatic. It is a legal defence evaluated "after" a dispute arises, not a pre-approval stamp.

Why Advertising Almost Never Qualifies

Commercial advertising is one of the weakest contexts in which to claim fair use. When a business uses an image to:

• Sell a product

• Drive traffic

• Promote a brand

• Increase conversions

…the use is explicitly commercial.

Courts consistently view this as weighing heavily 'against' fair use, especially when the image itself is the emotional or comedic hook.

Similar with Rentola, Gud Prompt has co-opted the Drake meme to imply that he endorses the ai prompt company.

Parody vs. Promotion

Many marketers confuse parody with promotion. Parody comments on or critiques the original work itself. Advertising, by contrast, uses the original work to draw attention 'away' from it and toward a product.

If the joke only works because the audience recognizes a copyrighted character or image—and that recognition benefits a brand—it is not parody. It is appropriation.

The “Everyone Does It” Fallacy

Another common defence is cultural normalization: “This is just how memes work.” But widespread infringement does not convert illegal behavior into legal precedent. It simply creates more unchallenged violations.

The Risk Brands Ignore

Claiming fair use does not prevent lawsuits, takedowns, or reputational damage. It merely delays accountability. And when challenged, many brands quietly remove the content—an implicit admission that the defense was never solid to begin with.

What This Means

Fair use is narrow, contextual, and risky. Using it as a marketing strategy is not clever—it’s negligent.

Intro - Memes, Marketing, and Misuse

Article 1 - The Meme Goldrush - Why Brands Can’t Resist stealing IP.