Can one be sued for humor? The legal pitfalls of meme marketing

Laughed at, shared, and served with a warning 

When Carlsen Verlag clarified in the summer of 2025 that it would not leave the rampant AI memes about children’s book character Conni unchallenged and reserved the right to take legal action, a lively debate erupted about the limits of internet humor.  While the matter did not escalate to court, it highlighted an issue that has since occupied social media teams and their legal departments: meme marketing operates on multiple legal levels simultaneously, and rights holders' tolerance in a commercial context is significantly lower than in a private one.

For brands, agencies, and creatives intentionally using memes as a communication tool, this is not merely an academic concern. Those looking to quickly and affordably generate reach often rely on viral templates, recognizable figures, or pop culture imagery— and in doing so navigate through at least four areas of law simultaneuously.

Copyright Law: Third-party templates are not free material

When creating a meme, one typically uses third-party images — film stills, book covers, photographs, cartoons. All of these are protected by copyright. To reproduce and publicly share such content, one generally needs a license or a relevant exception.

This is where Section 51a of the German Copyright Act (UrhG) comes into play. Following the implementation of the DSM Directive in 2021, this section serves as the central exception for caricature, parody, and pastiche. While it may sound like a free pass, it is not. The extent of the term "pastiche" has long been disputed and remains a complex issue. On April 14, 2026, the European Court of Justice (ECJ) provided the first binding EU definition in case C-590/23 (Pelham/Metall auf Metall): A pastiche exists when a work resembles an existing one but has noticeable differences and engages in a recognizable artistic or creative dialogue with the original. All three criteria must be met, which can often be challenging to demonstrate in specific cases.

This ruling serves as an important guideline for meme marketing and simultaneously acts as a warning. While it strengthens the exception, it does not create an automatic right. A meme that merely uses the recognition of another work to convey an entirely unrelated message without engaging with the original's content is unlikely to meet the requirements for an artistic dialogue. This risk is heightened in a commercial advertising context, where the courts tend to assess commercial uses more strictly than purely communicative ones.

Personality Rights: Even if the image fits, the person can sue

Even if a meme is legally sound in terms of copyright, the individual depicted can still take action. The right to one’s own image protects identifiable persons from unauthorized uses of their likeness — especially in advertising, where the already narrow exceptions typically do not apply. Particularly sensitive: celebrities, whose face and image have independent commercial value.  Transforming a reaction meme featuring an actor gazing in disbelief into an advertisement risks not only a cease-and-desist order for image rights but also accusations of misleading endorsement –, suggesting that the person supports the product.

Trademark law and unfair competition: When the joke comes at the competitor's expense

If a meme includes a third-party logo, brand color, or distinctive design of a competitor, claims for injunctions and damages due to reputation exploitation or defamation may arise. The Act Against Unfair Competition (UWG) complements the protective framework: even humorous formats are not exempt from fair competition law. Anyone who disparages or belittles a competitor crosses the line. Furthermore, if a meme is designed in such a way that it creates the impression that a third party or company is behind the message, there is a risk of being accused of misleading representation. Humor does not provide immunity under the UWG.

The special case of AI: No protection, but also no immunity

A significant portion of the brand memes circulating online today is AI-generated. What many do not realize is that AI output does not enjoy its own copyright protection in Germany, as it lacks human authorship. This may seem advantageous, but it is not. AI does not shield users from conflicts with third-party rights. If the tool produces protected stylistic elements, brand graphics, or recognizable personalities, the same limitations apply as with manual design. Moreover, the ECJ's requirements for a recognizable artistic dialogue are unlikely to be met by an AI-generated meme that simply places a well-known character in a new context. AI is not a compliance shortcut; it merely provides a new avenue into familiar liability traps.

Conclusion: Yes, one can be sued for humor

Meme marketing is not a legal anomaly but rather an intensification of classic intellectual property and communication risks. Section 51a of the UrhG provides some leeway, and the ECJ ruling from April 2026 now offers a binding European definition of the term "pastiche." However, it also demonstrates that the exception requires a recognizable artistic dialogue, which is not easily established in a commercial context. Personality rights, trademark law, and the UWG apply regardless and can derail a campaign that is otherwise sound from a copyright perspective.

For brands, agencies, and legal teams, this means: no unreflective adoption of viral templates, heightened caution with identifiable individuals and third-party logos, and a quick rights check before publication. Spontaneity is the essence of meme culture, but the legal risks can be significantly mitigated with manageable effort.