MEME-MARKETING INCREASES COMPANY VISIBILITY AND PRODUCT SALES. BUT IT’S A BIG RISK.

It is a social phenomenon that has been growing steadily for years, memes – i.e. graphic content, with images, GIFs and short videos accompanied by ironic and funny writings that are connected in most cases to events of strict current events – now invade the bulletin boards of all social networks, spreading rapidly and involving actors in the graphic representations,  singers and politicians. But they don’t even spare more or less well-known characters up to cartoons.

The success of memes, as well as for many phenomena that go viral on the web, has quickly gone from being a socio-cultural trend to becoming a flywheel of visibility and therefore also business for brands and products. As a result, it is immediately adopted by companies that think they can get easy visibility at no cost through “meme marketing”. But this is not the case: the use of images of people, whether known or not, used for commercial or advertising purposes without prior consent, is on a fine line of interpretation, considering that the portrait of a person is protected by art. 10 of the Civil Code and Articles 96 – 98 of the Copyright Act.

THE EXPERT: FOR UNAUTHORIZED USE OF FAMOUS FACES, RISK OF COMPENSATION EQUAL TO THE VALUE OF AN ADVERTISING CAMPAIGN WITH THE SAME SUBJECT

“The consent of the data subject is not required only in the case of the exceptions referred to in art. 97 of the Copyright Law, i.e. when the reproduction of the image is justified by the notoriety or public office held, by the needs of justice or police, by scientific, educational or cultural purposes, or when the reproduction is linked to facts, events, ceremonies of public interest or held in public – comments the lawyer. Margherita Cera of Rödl & Partner – However, the portrait may not be exhibited or put on the market in the event of damage to the honour, reputation or decorum of the person portrayed. The jurisprudence is also unanimous in considering that the image of a famous person, without his consent, cannot be used for purely commercial purposes and in particular advertising. On the other hand, art. Article 8 of the Industrial Property Code also prohibits the registration as a trademark of the names of well-known persons without their consent.”

It is therefore necessary to analyse, on a case-by-case basis, the purpose and context of publication of the image in order to determine whether or not the use is lawful. What could be the legal consequences for a company in misusing an image of a character in a meme?

“In the case of advertising exploitation of the image of a well-known person, if the conditions are met, it will be possible to take legal action asking for a ruling ordering the cessation of the abuse and condemning to compensation for pecuniary and non-pecuniary damage – underlines the lawyer. Wax from Rödl & Partner – In practice, various criteria are used to determine the amount of damage. As far as pecuniary damage is concerned, the so-called ‘price of consent’ is mainly used, i.e. the hypothetical sum that the interested party would have requested if he had authorised the exploitation of his image. On the other hand, non-pecuniary damage is more difficult to quantify and prove in court, but is traditionally traced back to the moral damage suffered.”

EVEN TO USE EINSTEN’S ‘TONGUE’ YOU HAVE TO PAY ROYALTIES

And also pay attention to commonly used images such as the widely and universally used one of Einstein sticking his tongue, taken on March 14, 1951 at his 72nd birthday party. Einstein, as long as he was alive, was very attentive to the use that was made of his name and his image, a – brilliant – precursor compared to what would later happen half a century later.

Today, anyone who wants to use this or other images for commercial purposes must obtain authorization – and the relative payment of a sum commensurate with the intended use – from the Foundation, which currently owns the image rights, or risk incurring long and complex lawsuits.