The phenomenon of “Italian Brainrot” originated on the web as a set of surreal characters generated through AI and spread mainly via social platforms in the form of memes and other virtual content.
Their success has not remained confined to the internet; in fact, one of the most important Italian publishing houses has launched the production and commercialization of collectible cards, school gadgets, and other physical products depicting the Brainrot characters.
This evolution raises questions regarding the ownership of intellectual and industrial property rights.
The legal framework: AI and copyright
With regard to the Brainrot characters, the question arises as to the ownership of copyright in works generated through AI.
The Italian national legislation, as already analyzed in a previous article, has recently clarified that works created with the aid of AI tools may also fall within the scope of copyright protection, provided that they constitute the result of the author’s intellectual work.
The decisive point is therefore the role played by humans in the creative process. In this sense, in order to be recognized as such, the author must be able to demonstrate their creative contribution, for example through the definition of prompts, the selection and reworking of the generated results, and any subsequent interventions of modification or integration.
In the context of Italian Brainrot, often born as anonymous and collective content, reconstructing the creative chain may prove complex, making it difficult to determine the holder of the rights in the work.
The race to trademark protection
Alongside the issue relating to the ownership of copyright, many parties have filed trademarks containing the sign “ITALIAN BRAINROT,” both at national and international level.
Also from the perspective of industrial property, therefore, significant areas of uncertainty emerge regarding the identification of the legitimate holder of the rights.
In particular, where multiple parties assert claims over the same sign, it will be necessary to ascertain the priority of the invoked rights, the good faith of the applicants, as well as the distinctiveness and any notoriety of the sign, all elements that are decisive for the validity of the trademarks.
Conclusions and future prospects
The current success of Italian Brainrot is strongly fueled by the novelty and virality of the phenomenon, factors which, by their nature, have an intrinsically volatile character.
At present, Italian Brainrot has attracted the interest of companies willing to invest even beyond national borders. In this context, a clear definition of intellectual and industrial property rights takes on significant importance, not only to prevent disputes, but also to ensure the correct and organic development of the phenomenon, which represents one of the first cases of popular creativity generated through the use of AI.
Elena Bandinelli