For the record, Anderson Cooper does not endorse Jaja Tequila, the booze startup founded by the man behind the viral Instagram account @fuckjerry. Neither does Amy Poehler, Idris Elba, Julianne Moore, Amy Adams, or Will Smith. But you could be forgiven for thinking these celebrities are big fans of Jaja based on the tequila brand's Instagram feed.
Until recently, Jaja’s Instagram was full of celebrity memes. Cooper took a swig of tequila on their page and then breathed fire. Poehler appeared in a meme promoting their booze. Steven Spielberg’s ET took a swig straight out of a bottle. Bob Ross painted a Jaja-branded landscape. Other images show Instagram models lounging by the pool, in the shower, on a skateboard, or taking in a sunset with bottles of Jaja tequila strategically positioned in the frame.
Jaja Tequila is the brainchild of Elliot Tebele, founder of marketing firm Jerry Media, which grew out of the @fuckjerry Instagram account, famous for slinging viral memes and “curating” jokes that now post to some 14 million followers. Today, Jerry Media employs dozens of people and charges tens of thousands of dollars to post memes for brands on @fuckjerry and other accounts. It has also been accused of stealing jokes and refusing to give credit to the comedians who wrote them, though Tebele now says the company’s policy is to give credit and seek permission before posting anyone else’s work.
Jerry Media helped promote the now-infamous Fyre Festival, the Bahamas event that failed spectacularly and landed founder Billy McFarland a six-year prison sentence for wire fraud. Tebele, on the other hand, landed himself a gig as executive producer along with VICE on Netflix’s “Fyre: The Greatest Party that Never Happened.” (Disclosure: VICE News is a unit of VICE Media, which co-produced the film.)
Tebele has also used a similar formula of memes, copyrighted photos, and unlabeled ads on Instagram to push Jaja — which, online, means “lol” in Spanish — to a millennial, social media-savvy audience.
“We decided one day that we just wanted to change the way tequila is presented to consumers,” Elliot’s brother and company co-founder, Maurice Tebele, told VICE News. “The whole liquor space in general was a little bit dry and catering to basically everyone but the millennials.”
The trouble is, several of the celebrities pictured in those posts had no idea they were “endorsing” Jaja, or that their images were being used to shill liquor.
“Amy is in no way affiliated nor has ever heard of this brand,” Brittany Gilpin, Poehler’s publicist at Kovert Creative, told VICE News in an email. “We were not aware of this post but will now take appropriate action.”
“We do not endorse their product and we did not give them permission to use our branding or talent in their promotion,” Shimrit Sheetrit of CNN Public Relations said in an email, referring to the video Jaja posted of Anderson Cooper. Other celebrity photos were taken down hours after VICE News sought comment.
Jaja even brand-jacked a brand-jacking when it photoshopped Jaja Tequila over the Fiji Water bottles that found their way onto the red carpet at the Golden Globes. The model holding the bottles, whose real name is Kelleth Cuthbert, 31, is suing Fiji for using her image without her permission.
Jaja’s founders say their use of celebrity images is entirely legal and that anyone familiar with social media is unlikely to think a celebrity had posed for, or endorsed, Jaja Tequila.
“That type of content falls under parody,” Maurice Tebele told VICE News.
Asked why they were taken down, Tebele said, “Given the recent scrutiny with social media in general, we do understand that that stuff is sensitive. We did actually remove some of those posts from our feed because we felt that they would spur some kind of backlash. So right now everything you see on the feed is either photos of the product or original content. So now there’s nothing with celebrities anymore.”
Not everyone agrees with the parody argument. “If an advertiser doesn't get permission from a celebrity to post their photo in advertising with their product then that's a violation of that celebrity's right of publicity,” said Monique Bhargava, a partner in the Advanced Media & Technology group at Loeb & Loeb, who specializes in advertising and marketing law.
Then there are copyright issues. “If an advertiser is taking photos that it doesn't own or doesn't have a license to, oftentimes that may be a copyright infringement,” she said.
What Jaja hasn’t taken down are photos with the Instagram “influencers” who are posting with bottles of Jaja casually in the frame, many without any advertising disclosure.
Mexican actress Karla Souza posed with a bottle of Jaja Tequila and posted the photo to her account without an ad disclosure. The photo was liked more than 133,000 times. VICE News reached out to Souza through both Instagram and her representative but did not get a response.
One influencer, Neda Varbanova or @healthywithnedi, did lob an #ad hashtag into an ad masquerading as instructions for how to make a “Skinny Nedi Tequila.”
Maurice Tebele and Martin Hoffstein, a childhood friend of the Tebeles and a Jaja cofounder, told VICE News they’d never paid anyone to promote their booze on Instagram. But they did send influencers hoodies, hats, t-shirts, and free bottles of tequila.
That still may constitute a payment in the eyes of the Federal Trade Commission, which regulates advertising. “It doesn’t have to be that you’re paid cash, it could be that you got free product,” Mary Engle, associate director in the division of advertising practices at the FTC told VICE News. “The issue for us is whether the thing that was received, whether it would be material to people to know that they received it for free. We recommend disclosure because it’s safer.”
Tebele’s promoting Jaja on the @fuckjerry feed without an ad disclosure could be illegal, too. If it’s not widely known that Tebele runs Jaja, he’d likely need to label those posts as ads, per FTC guidelines. The posts were not labeled as ads. Since VICE News started reporting this story, several posts on the @fuckjerry feed advertising Jaja have also been deleted.
A Jerry Media spokesman argues posts promoting Jaja are legal since it’s widely known that Elliot Tebele owns both @fuckjerry and Jaja Tequila.
“Given his public relationship with the company, Elliot chooses to promote its products on his own accounts just like Rihanna posts about FentyBeauty, or Kylie Jenner posts about Kylie Cosmetics,” a spokesperson for Jerry Media said in an email. “In each of these instances, the ‘#Ad’ hashtag is not required under FTC guidelines because the poster has publicly disclosed their close relationship with the company in a clear and unequivocal manner.”
Instagram told VICE News that it does moderate posts for copyright infringement, and though Jaja’s account is still live, enough reports to the social media company could lead to their account getting taken down.
“If someone continues to infringe the copyright of others, we will remove their account from Instagram,” a spokesperson for Instagram said in an email.
Comedians have been calling out Tebele for years for building his brand off stolen jokes. Megh Wright launched a #FuckFuckJerry campaign to call attention to their joke theft, encouraging people to unfollow their accounts. And on Feb. 2, it appeared to catch up to him when Comedy Central pulled out of a deal with Jerry Media amid criticism. The irony was rich: @fuckjerry, which gained millions of Instagram followers by stealing jokes, was promoting a comedy network
Tebele argues he built @fuckjerry before standards and norms of social media advertising were fully codified, and he says he’s having a change of heart now. After the Comedy Central debacle Tebele wrote a post on Medium, apologizing to anyone who “feels we have wronged them,” and promising that not only would Jerry Media credit the creators of the content it uses in its posts, but would get permission from them before posting to any Jerry accounts in the future.
“I know I’ve made enemies over the years for using content and not giving proper credit and attribution to its creators,” Tebele wrote. “In the past few years, I have made a concerted, proactive effort to properly credit creators for their work.”
It’s also not clear Jerry Media will escape the Fyre Festival fiasco unscathed. The festival was was hyped, in part by Jerry Media, as a luxury music festival on a private island in the Bahamas, with supermodels and swimming pigs in attendance. What it actually turned into was a soggy mess of FEMA tents, left over from Hurricane Matthew, packed with hungry millennials who paid top dollar to be there but ended up fighting for water, food, and a dry place to sleep.
The lawyer overseeing Fyre Media’s bankruptcy case asked a judge to issue a subpoena to Jerry Media to find out what they were paid to promote the Fyre Festival. Jerry Media says they have not been subpoenaed yet and will cooperate if and when they are.
Then there’s a class-action lawsuit brought by Fyre Festival attendees looking to recover money from anyone who could be shown to be civilly liable. “We’re looking to build a case against anyone who aided and abetted,” said Ben Meiselas, with Geragos & Geragos, the lead counsel on the class action.
Jerry Media told VICE News that they aren’t currently a defendant in the class-action.
Legal or not, Jaja’s campaign is working. Tebele said they’d sold almost 10,000 cases of tequila between the company’s launch in August and the end of 2018, which at about $210 a case for blanco or $250 for reposado would have netted the company more than $2 million.
“Looking at the tequila industry,” Hoffstein said, “it’s the Don Julio, the, the Casamigos, José Cuervos, 1800. It’s powered primarily by older white men and we wanted to create something that felt inclusive, fun, less stuffy, not the bottle you go to the club with the sparklers, but something that’s easily accessible, shareable, almost viral in a lot of senses.”
Even without celebrities, Tebele is still doing what he knows best to keep millennials scrolling and buying. One joke had the Tenaha, Texas police department, which achieved meme fame after posting a photo of a drug bust, appearing in a photoshopped post standing in front of an empty table with nothing but a bottle of their tequila.
“The post was clearly parody, so JAJA did not have to buy any rights or ask permission, under well established fair use rules,” Hoffstein said in an email. The Tenaha Marshal’s office did not respond to multiple requests for comment from VICE News.
Jaja even looked to fine art, posting a Mark Rothko to their Instagram account. Hoffstein said the photo was just meant to set the brand’s mood.
“We drew inspiration from the photo, and in no way stated or implied that Mr. Rothko or his estate endorsed our products,” Hoffstein said. “This is a common practice among brand-forward companies that are active on social-media.”
Brand-forward or not, Monique Bhargava with Loeb & Loeb said: “It is not common practice or standard practice to take images of copyrighted works and post them on social for advertising purposes without permission from the copyright holder.”
That Rothko was, predictably, unlicensed.
“Artists Rights Society represents the intellectual property rights of the heirs of Mark Rothko,” said Adrienne Fields, the director of legal affairs at the Artists Rights Society told VICE News. “To confirm, we have no record of licensing the work of art in question to Jaja Tequila.”
Cover: Elliot Tebele accepts the award for Best Meme/Parody Account for @fuckjerry onstage during the 10th Annual Shorty Awards at PlayStation Theater on April 15, 2018 in New York City. (Photo by Dave Kotinsky/Getty Images for Shorty Awards)